Copyright Law’s “Blurred Lines” Will Remain That Way

Tuesday, April 17th, 2018 @ 11:02AM

Every once in a while, the law can be wildly unpredictable and interesting.

Not necessarily in a good way… but interesting nonetheless.

As is the case with the verdict in Robin Thicke and Pharrell Blurred Lines appeal. Though the verdict is bad news for a lot of music creators, it’s an interesting change in the application of the law.

But that’s not all that’s going on in the world of intellectual property news. There’s an interesting new case we’re keeping an eye on as well.

Details on everything below.

“Blurred Lines” Verdict Upheld, Leaving Questions in Its Wake

It was the verdict one expert and his colleagues were so sure would be overturned, they were counting the days waiting for it to happen…

But then, it didn’t.

The music industry was shocked three years ago when Robin Thicke and Pharrell Williams were found to have infringed Marvin Gaye’s “Got to Give It Up” in their 2013 hit “Blurred Lines.”

And it is now shocked again to find the verdict upheld in a 2-1 opinion issued by the Ninth Circuit appellate court. (You can download a copy of the 89-page verdict here.)

As we explained at the time of the lower court’s ruling, this case was a watershed moment because it wasn’t about infringement of a lyric or a melody. Rather, it was about the tone and feel of the song – the overall sound, with its recognizable cowbell and party vibe. These elements aren’t typically copyrightable.

As we also talked about when the verdict came down, Gaye’s hit was released in the mid-1970s, right around the time there was a major change in copyright law. Thicke and Williams appealed on the basis of that change in the law. They argued that the jury considered evidence it shouldn’t have been presented with – and as result, that evidence impacted the outcome of the case.

The appellate court took care to note that its decision was purely procedural, disappointing industry watchers who wanted the case’s substantive issues addressed. As Judge Smith wrote for the majority, “[o]ur decision does not grant license to copyright a musical style or “groove”… Rather, our decision hinges on settled procedural principles and the limited nature of our appellate review.”

For that reason, some say the outcome of this case doesn’t really change copyright law and won’t have much impact on future cases. The Gaye family’s lawyer agrees, pointing to a 1994 suit the Isley Brothers brought and won against Michael Bolton. That case was also supposed to be a landmark case but didn’t end up triggering the expected wave of lawsuits.

Yet many lawyers and forensic musicologists (a type of expert relied on in the Blurred Lines case) say they’ve already seen more cases, and faster settlements, since the “Blurred Lines” verdict was issued in 2015.

Industry watchers are hoping Thicke and Williams seek an en banc decision (where the entire Ninth Circuit court considers the case, rather than just a three-person panel) or appeal to the Supreme Court so this case can be decided on the merits. But in either event, there’s no guarantee the court will grant the request.

So for now, the 2-1 appellate decision stands. Even though one judge strongly dissented, pointing out that “[W]hat the majority overlooks is that the two works in the same genre must share at least some protectable expression in order to run afoul of copyright law.”

Now, Here’s Something Ironic

Do you remember Robin Thicke’s performance with Miley Cyrus at the 2013 MTV Video Music Awards?

When “Blurred Lines” was #1 on the music charts, the #2 track was Cyrus’s “We Can’t Stop.” At the MTV awards, the two performed a rather raunchy mashup of these songs.

As we all know, Thicke was sued for his song – and as it turns out, now Cyrus is being sued for hers.

Plaintiff Michael May asserts that Cyrus’s lyric “we run things / things don’t run we” is a misappropriation of his 1988 lyric “we run things / things no run we.”

Unlike the “Blurred Lines” lawsuit, the musical tracks at issue don’t sound alike. (You can judge for yourself here.) The point of contention is just the lyric. May estimates that his contribution to the success of Cyrus’s song is worth $300 million. He’s seeking an injunction to future sales and performances of “We Can’t Stop.”

And Here’s a Case that Seems Ironic But Isn’t

On a different note, here’s a case that at first blush seems ironic…

But really isn’t at all.

Tinder (or more specifically, its parent company Match) is suing Bumble, and Bumble is countersuing.

If you don’t know what those two companies are, let’s just say that one online dating company is suing the other.

Now, Tinder and Bumble both use “swipe left” and “swipe right” technology to connect (or reject) other members. The big difference is that on Bumble (the newer company), for heterosexual matches, the interface requires any conversations to be initiated by the woman.

It seems cut and dried that if Tinder came along first, Bumble is infringing.

But it’s not that simple. Here’s the backstory with these two companies.

Bumble founder Whitney Wolfe Herd was a co-founder of Tinder. She founded Bumble in 2014, the same year she left Tinder and sued that company for sexual harassment. Though Match denied her allegations, it paid Herd to settle the suit.

In 2017, Match offered to buy Bumble, but Bumble turned down the offer, citing the $450 million price as too low. So Match requested confidential marketing information and financial information, purportedly to raise its bid. After raising its offer, Tinder dropped its bid lower again, and negotiations fell apart.

Tinder announced that it would be adding the same woman-controlled feature to its app, and at the same time initiated suit against Bumble. The complaint cites infringement of two patents; infringement of Tinder’s “swipe” trademark, the application for which is currently on hold with the United States Patent and Trademark Office; and theft of trade secrets by two former Tinder employees who now work for Bumble.

But Bumble isn’t just playing defense. The company first published an open letter positioning it as the underdog in a David-and-Goliath style battle. Then it countersued for fraud and theft of trade secrets.

Bumble alleges Tinder is trying to devalue Bumble in the eyes of other potential financial suiters. Moreover, says Bumble, Tinder was already planning to sue Bumble when it sought confidential company information under the guise of raising its offer price.

One thing is almost certain: with this case just heating up, we’re sure to hear more surprising allegations between the parties if they don’t settle quickly.

Never Mind the Drama – We Can Help

You’ve already seen that intellectual property law can be dramatic.

It can also be confusing.

If you have a question about entertainment law or intellectual property law, then contact us for a consultation. It’s free, and there’s no obligation.

Our firm regularly handles both transactions and disputes around copyrights, trademarks, and patents. To learn how to protect your IP, call (561) 953-5300 to schedule your complimentary appointment.

Please note: this blog is intended to provide general information which should not be taken as legal advice.

Original article posted on our dedicated blog on April 15, 2018 https://lomnitzerlaw.wordpress.com/

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