Copyright Laws Create Blurred Lines

By now you’ve heard that Robin Thicke and Pharrell Williams have lost their legal battle against the Marvin Gaye estate. A jury found in mid-March that Thicke and Pharrell’s “Blurred Lines,” the biggest-selling song of 2013, infringed on Gaye’s “Got to Give it Up” to the tune of more than $7.3 million dollars. The “Blurred Lines” creators purportedly intend to appeal.

A quick listen to portions of the songs back-to-back makes it easy to hear the similarities between them. But still: aren’t there songs out there that sound more similar than these? Sam Smith just settled with Tom Petty because the chorus of Smith’s “Stay With Me” has the same melody as the chorus of Petty’s “I Won’t Back Down” – before the case ever made it to court. And many people are surprised that Madonna never sued Lady Gaga over Gaga’s “Born This Way” – easily identifiable as being inspired by the queen of pop’s “Express Yourself.” “Blurred Lines” sounds arguably less like “Got to Give it Up” than some of these other examples. So what’s the difference?

A variety of commentators agree that the similarity in this song is really in the sound and the feel – like the listener is at a disco party where people are clapping, cheering, and playing the cowbell. If you played the songs on an acoustic guitar, you would hear different chords, keys, and melodies. But due to when Gaye’s disco track was released, that actually doesn’t matter. The copyright for “Got to Give it Up” was registered in 1977, the last year before a sea change in the Copyright Act. Hence, there are different rules for works with copyrights registered before 1978, and works with copyrights registered in 1978 or later. In this case, Gaye only had a copyright in the musical composition of his song and not the completed sound recording. This means that the final recording itself was never at issue, and indeed, the jury never even listened to the two complete songs in court!

Some chalk it up to having the case heard by a jury who considered the similarities in the sound recordings which were not supposed to matter. Others say that it was unwise for Thicke to openly talk about how he wanted to record an homage to “Got to Give it Up,” one of his favorite songs of all time. And then there is the question of whether any of this would be an issue if “Blurred Lines” hadn’t made so much money.

Regardless of the reason for the ruling, its implications for the music industry are huge. The purpose of copyright law is to incentivize creators to develop new works by providing protection for the creations. Yet this rationale fails in this case for two reasons. First, Marvin Gaye himself reaps no benefit; rather, his heirs do, and those heirs had nothing to do with the creation of Gaye’s song. Second, the outcome of this case may ultimately end up stifling creativity rather than promoting it. Because while inspiration is everywhere, artists may become afraid if their songs sounds too similar to other musical works that came before. And even if the artists aren’t afraid, their record labels might be.
Who really lost in court? Robin Thicke and Pharrell Williams, certainly. But also musicians and music lovers everywhere.