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])