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What Happened at the Blurred Lines Trial and Why the Jury Got it Right and Why it Will Not Destroy the Music Industry


I was going to avoid commenting on the recent Blurred Lines decision because there was nothing all that extraordinary or incorrect about the ruling. But after reading the flood of recent posts and articles on the subject, almost all of which have been off-base, ignorant of the applicable law, and reactionary,  I thought I would write in an attempt to clarify a few things. I assume the reader is familiar with the matter, so I will not recite the basic facts of the case, or detail the result other than to say that the jury found Pharrell Williams and Robin Thicke liable for copyright infringement, and awarded 7.4 million in damages to the Gaye estate. I will add the following:

It was a close case, there is no doubt about that. Did Williamz waltz right up to the line demarcating actionable copying of the expression of the Gaye song, or did he cross that line? This was for the jury decide, and the jury was given almost two weeks of evidence to consider. This brings me to the first problem with almost every recent article on the subject: they are written by people that did not review any of the evidence and certainly were not in attendance for any of the trial. I was in the courtroom for a portion of the trial, including to witness the testimony of the Gaye estate’s musicologist. She testified, very persuasively, that the signature phrase that forms the backbone of Blurred Lines was copied almost verbatim from the Gaye song. She also noted that the melisma (basically the way the word syllables combine with notes) in Blurred Lines appears to be taken wholesale from the Gaye song. When I left the courtroom that day, just about everyone else in attendance was convinced that infringement had taken place. I was more skeptical than most, but still felt that it was more likely than not that infringement occurred.

Which brings me to my second point: far too many of the people writing articles and posts on this case have watched far too many episodes of Law & Order (which deals with criminal law cases) and seem to believe that the “beyond a reasonable doubt” standard applies to civil cases, such as those for civil copyright infringement. This is wrong – “beyond a reasonable doubt” is the criminal law standard. The Gaye estate did not have to prove copying “beyond a reasonable doubt”; instead, they had to prove that it was more likely than not that copying occurred. This is a 51% standard, and the Gaye estate met that standard at trial.

Another issue that most people are getting wrong is the standard of similarity necessary to show infringement. These articles complain that the jury was wrong because the songs are “not identical.” But identicality is not the standard, as readers of this site know. The standard is “substantial similarity” – that a material portion of the Williams/Thicke song was taken from the Gaye song and recreated in a substantially similar manner. This is because copyright law is very literal, it protects the”right to copy.” If an infringer could pitch-shift or otherwise change someone else’s work in a non-substantial way and claim it as their own, copyright law would not work. Williams’ changes to the Gaye track did not allow him to escape liability for infringement.

Which brings us to materiality. Far too many articles are going Chicken Little and hollering that this case will ruin the music industry because people will start suing over the sound of a snare drum or the note “do” or “re” or “mi.”  This is hogwash. For a copyright case to be valid, the infringer has to have taken a material amount of expression. While this varies from case to case, it is not negligible or de minimis. Someone claiming infringement must show that a material amount of their work was taken, or their case will be tossed out of court well before it even gets to a jury trial. Even more, somebody who sues over a frivolous taking may be ordered to pay the other side’s attorneys’ fees for bringing such a case. This is exactly what happened in a recent case against Jay-Z over his use of the word “oh” in Run this Town.  (This case, it should be noted, was filed well before the Blurred Lines verdict.) The Judge in that matter ruled correctly that the “oh” was not material and on that basis threw that case the heck out of court. So, there is a line between an immaterial taking (legal) and a material taking (illegal). Most instances will not cross this line but when it is crossed, a finding of infringement is proper.

Other articles are livid over the fact that Thicke and Williams had to cough up all the money they made on the infringing song. This, too, is incorrect, as they each made more than 7 million off this song from sales and publishing alone, and are jointly and severally liable for these damages, meaning they will pay less than half of what they made selling and publishing the song (and note that most money is made from touring, and they both get to keep all of the money they made playing that song while touring). The number, while high, is not unreasonable here.

One final point that has been overlooked by most is that Williams admitted that he is unable to read or write music yet still spent less than an hour putting together Blurred Lines (Thicke said he spent no time on the music and just showed up to sing over Pharrell’s work). This minimal expenditure of times makes more sense if you take as true the fact that Williams started with Gaye’s song and modified it. It also makes the likelihood of copying more likely than not.

In the end, it was a close call, and the jury made a decision that is just and will hopefully encourage artists to either write their own music instead of replicating the work of others (which will lead to more new music, which is a good thing) or get in touch with the musician responsible for the work they want to use and work out a license (like Sam Smith recently did, albeit belatedly, with Tom Petty). That way, everybody wins (except the lawyers, which is also a good thing).

-AttorneyScott ([email protected])

Birds of a Feather



When it comes to art depicting the animal kingdom, certain limitations on copyright protection apply. The naturalistic appear of the animal, and the basic components of its corpus, are not protectable. If you draw an owl atop a tree, you will not be able to stop others from drawing owls or trees. Nor will you be able to stop others from drawing wings, beaks, talons, and all those other parts that we all know owls to possess. You can, however, protect your creative twist on these elements, and the fanciful way in which you depict the creature. The more fanciful your depiction, and less technically accurate, the stronger your copyright protection.

-AttorneyScott ([email protected])



The logo below on the left “Lion Bird” was designed by Nashifan Nizam (a designer from Sri Lanka). The logo on the right is from a shop in Oregon. Looks like a copy to me.


Fine Feathered Friends Compared:


What on Earth is Transformative Use?


This post allows us to explore some of the issues raised in Prince v. Cariou, last year’s most head-scratching appellate court case.

In that case, Richard Prince, a collage or “appropriation” artist, was alleged to have taken without permission a number of photographs created by Patric Cariou for a book he (Cariou) published on Jamaica. Prince basically copied a bunch of Cariou’s photographs and then scratched them up a bit, adding little details of coarseness and drips and color. He then sold the resulting collages for millions of dollars.

The district court found Prince liable for infringement, but the appellate court, in a confounding opinion, said that certain of the pieces may not be infringing because they were potentially “transformative.” The problem, though, is that nobody really knows what “transformative” means. And, the Prince pieces were altered in such a rudimentary fashion that it seemed very unlikely that they could qualify as transformative under even the most liberal definition of the word. Yet, that is what the Court laid down, and the Court’s word is, quite literally, law.

Similar issues seem to bubble up in our most recent post. Is the artist below’s work “transformative” enough to qualify as a new, non-infringing work?

-AttorneyScott ([email protected])



The artist, Benjamin Spark, has built a career out of copying the works of others. He even attempts to justify his admitted plagiarism of other artists’ work in a section he has written on his web site explaining his “art.” The evidence of infringement, though, is clear from images of his work, a selection of which are pictured below.

- Reader


Walmart is known for rolling back prices, but are they also making moves that roll right over the intellectual property rights of a Bay Area artist?

The politics of this dispute give it an extra bit of oomph. Walmart, known to be a leading member of the establishment and conservative and not the greatest in terms of worker treatment, has allegedly misappropriated the more anti-establishment work of Eddie Colla and incorporated that work into its art prints. The Colla work in question is certainly protectable as a two-dimensional work of visual art. Walmart’s piece, on first glance, looks to be quite similar. Was Walmart’s manner of moving into the street art game a colossal blunder?

-ATTORNEYSCOTT – [email protected]




Eddie Colla, an Oakland-based artist, created his well-known piece, “Ambition” in 2009. Depicting a female graffiti writer with a spray can, the piece reads, “If you want to achieve greatness, stop asking for permission.” But in November 2013, Colla discovered an exact replica of his work marketed as an art print on the Walmart website — without his permission or any sort of legal agreement.


A big box retailer copying an independent artist note-for-note was not the kind of audacious underdog story Colla envisioned in the work’s text. “I made a piece about individuals controlling their own fate and not making their success contingent on the approval of others,” said Colla. “It then gets adopted by a neo-feudal corporation like Walmart. A corporation whose employment practices have created a 2 million person underclass in this country.”


As Colla dug deeper, he discovered that Walmart was selling the mass-produced prints of his work through a wholesaler called Wayfair, who is marketing Colla’s work as a Banksy print through Amazon and in addition to Walmart’s website. Eddie Colla’s name was omitted entirely and his signature was taken off the piece. Friends who visited the Walmart website after they heard Colla’s story noticed the Colla knock-off showing up in their Facebook ads and Google ads on the various sites they visited when they subsequently surfed the net — presumably because of a cookie from the Wayfair website.


The idea of big box retailers like Walmart appropriating an anti-establishment art form, street art, to further their profits is all too ironic. The bastions of conservatism and propagators of the increasing wealth gap and declining middle class, companies like Walmart have an ideology pitted against the anti-authoritarian message of Colla’s “Ambition.” Colla chose to combat the unabashed theft of his work with parody — and, of course, an impending lawsuit. A new version of “Ambition” titled “It’s Only Stealing If You Get Caught” shows the same image with altered text: “Introducing the anti-establishment, left-wing subversive vandalism collection. Glorified vandalism available now at Walmart.”
The satirical new artwork — which recently was debuted on a San Francisco billboard on the intersection of Oak St. and Divisadero St. — points out that Walmart’s greed has no limits. Even a radical art form has the potential to be swallowed up by the behemoth machine of corporate capitalism. Colla released a print of “It’s Only Stealing If You Get Caught” with 1XRun on earlier today, December 2, to raise awareness for his cause and gather funds for the hefty legal fees necessary to sue Walmart and Wayfair for the theft of his artwork. The print sold out within one hour, but it’s only a start.

- Online source

The images are below, Colla on top, Walmart on bottom:

Displaying IMG_1143.jpgDisplaying walmart screen shot 2.png

Recasting in the Digital Age


One of the exclusive rights granted to an artist when she creates an original work  is the right to “transform” or “recast” that work in ways she sees fit. That precludes others from, say, taking one’s painting of a unicorn and making unicorn stuffed animals based on the painting. Below, we have a very modern example of alleged unauthorized “transformation” and “recasting.” Read on.

- Scott A. Burroughs, Esq. ( [email protected] )



Quite a lot of activity ensued on Facebook Recently when High Street Gallery posted details of an upcoming art exhibition by Artist Lynn Howarth on Facebook page I know this Great Little Place In Glasgow.

Some visitors remarked “wow” at the posting of the lady’s art but one or two comments were more inquisitive. “Is this an edited photo?” someone enquired. The answer from High Street Gallery representative David Johnston was that no, Ms Howarth’s art was all freehand and on ipad.


Really. Well that’s astounding. It appears we have a new art legend in our midst. Although if you compare her digital art to her traditional art there seems to be  more than a slight difference in skill level. As some digi-artheads got together and started rummaging around Ms Howarths own website things became interesting. Her Facebook pages (linked from her art website) were even more interesting. Gasps from various visitors enquiring “My goodness is that a painting”? were met with yes. Apparently you only have to look closely to see the brush strokes and the sitters were also very patient. Apparently.


Digital Painting - not photography based.


Now the iPad (which this was created on) is good and the art packages are great as any digi-artist will tell you. No need for great cumbersome digitisers etc. This painting however, and we are not saying it is, but let’s just say we are more than a little convinced it’s a photo-manip….but did she forget the eyes? There is other very telling detail if you look closely….and we did.

So we got suspicious to the integrity of this whole thing. Some quick searching came up with this:-

I's A Freehand Drawing FFS!

Claimed to be a freehand drawing


Abbozzo image on the left, Ms Howarths “Freehand Drawing” on the right.

We couldn’t resist in our excited little group sticking this up on a HUGE monitor and checking it out. It’s a photomanip with some kind of drawing or tracing on top, that goes without question but the interesting thing was the copyright.  It belonged to Architects Abbozzo.

Two of our members are photographers and this was enough to get them, lets say, a bit pissed. The hunt continued…..

I't A Freehand Drawing remember

I't A Freehand Drawing remember

This one was quite spectacular.

There were more…..

By this point, one of our members started posting on the High Street Gallery Facebook Page. The posts were removed but some stayed for a while. We decided it was the right thing to do to contact the copyright owners.

Now, YouThought We Wouldn’t Notice states that it is not really about artist against artist, but this gallery owners attitude turned out to be appalling. Ms Howarth may be niaive at best, but the way this next guy was treated is dispicable.

Another Freehand Sketch!

Original by photographer on the left and Ms Howarths  freehand sketch on the right. Unfortunately the quality on this is poor as it was pulled quickly.

The photographer (who has requested that his name be removed) contacted High Street Gallery but was shocked to find that the gallery were standing by their artist. The photographer stated that the gallery defended Ms Howarth. He also pointed out that far from being naive, Ms Howrths own website is covered with copyright symbols on her own work so she is clearly aware.

And if you think all this doesn’t matter – we reckon there were around 10 images in this show at least (We had another fantastic copyright breach of George Square in Glasgow but it too was pulled quickly). Ten images with say an edition of say 500 selling at 100 pounds sterling. That’s a total of half a million in turnover. Surely it’s right that some of this goes to the creator of the true original?

This, of course, does not deal with the fact that digital art is presented as painting when it is photography based photomanipulation or tracing.

Ms Howarth has even done a demo at an iPad store. I wonder what Apple would think?

The only funny thing about all this, her exhibition was called Mi Art (as in My Art but with an iPad twist).

We will be watching.

UPDATE High Street Gallery, further to the glaring copyright infringement cancelled the Lynn Howarth Exhibition. At this time we cannot confirm if they are still selling the questionable prints.



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