Blurred lines and copyright infringement

|The Volokh Conspiracy |

http://www.washingtonpost.com/posttv/national/thicke-williams-found-liable-for-copyright-infringement/2015/03/10/309a7b20-c787-11e4-bea5-b893e7ac3fb3_video.html

There are many awful and embarrassing—even idiotic—features of our copyright law, and I've written about a lot of them here on the VC. I hesitate to add yet another voice to all of the noise that has surrounded the announcement of the jury verdict (and the award of $7.4 million in damages) to the heirs of the Marvin Gaye estate, based on their claim that the Robin Thicke-Pharrell Williams megahit "Blurred Lines" infringes the copyright in Gaye's 1977 disco classic, "Got to Give it Up," so I'll content myself with just a few observations.

Here are two things that aggravate me about this decision—the role of the "experts," and the role of the heirs.

If you haven't listened to the two songs yet, you should do so [here]. That they are "similar" is undeniable. But wherein does the similarity lie? To my ears—and, from the commentary I've seen, the ears of many listeners who have ventured an opinion on the case—the similarity is in the "groove," or the "vibe"; the overall sonic environment—it really does sound like you've walked into the same party when you listen to the two songs; the handclaps, the crowd noise, the repetitive bass line, … all the magic that sound engineers can perform to make the overall feel of the Thicke-Farrell song resemble Gaye's—presumably quite intentionally.

But because of a strange quirk of Copyright Law, Gaye only could assert a copyright claim (and therefore his heirs—more on this below—only could assert a copyright claim) in the "musical work," NOT in the recorded performance of the song. [A brief explanation. Gaye's song dates from 1977. Though federal copyright law began to recognize a separate "sound recording" copyright, which owned, in the first instance, by the recording artist(s) (though it is often assigned to his/her record company) in 1972, it provides for a very limited set of rights to the copyright owner, and Gaye's sound recording copyright doesn't cover a claim that Thicke-Williams listened to the recording and copied parts of it into Blurred Lines (though his "musical work" copyright, which goes to the composer of Got to Give it Up (who happens also to be Marvin Gaye), does].

This is a very hard part of copyright law for many people to understand, including many copyright lawyers and many artists. Gaye's estate is suing for infringement of the song itself, entirely independent of what the recording of that song actually sounded like.

[Some commentators try to capture this by saying that Gaye only has copyright in "the sheet music"—but that's not right, either. The sheet music is like the recording in the sense that it is just a particular kind of embodiment of "the song" in a material, perceptible form. No, the musical composition that receives protection under copyright law is an entirely intangible thing, that can take many different shapes and can be instantiated in many different ways (on tape, on video, in musical notation). It's bizarrely Platonic—remember the Cave, where we can never see the true "essences" or "types" of things, but only their shadows on the wall? It's like that. ]

What it means is that the jury in the case didn't listen to the two recordings to determine the extent to which they're similar. Let me say that again, in case you missed the import: our copyright law is so peculiar that a case involving an allegation that Thicke-Williams heard the Gaye recording and improperly took material from it, the jury was not presented with the two recordings in question to determine the extent to which they're similar. Instead, the question presented was the extent to which Thicke-Williams might have improperly taken elements from Gaye's "musical composition." Anything they might have taken from the recording of Gaye's song that was not in "the musical composition" itself—such as elements that may have been added to "the musical composition" when Gaye was in the recording studio—cannot be the basis for the infringement claim here, because those aren't protected by copyright.

[Sorry for all the italics and quotation marks, but it really is a crazy and completely counter-intuitive way to think about the creative process that we are forced, kicking and screaming, to utilize when we are in Copyrightville, and I find that one needs them to get one's points across]

So instead of asking the jury to compare the two recordings (sensible), they were asked to compare the two "musical compositions" (not sensible). But how can they know what was in Gaye's musical composition, when it is an intangible, existing in its pure unadulterated form only in the mind of the now-deceased Marvin Gaye?? BRING IN THE EXPERTS!

This case involved days of expert testimony about the various "elements" of the Gaye composition, and where those elements appeared in the Thicke-Farrell version.

http://www.washingtonpost.com/posttv/entertainment/tv/blurred-lines-verdict-leaves-keith-urban-shocked/2015/03/12/b3787157-3083-494c-a40e-2787affc634f_video.html

The use of experts in copyright infringement cases has long been a subject of dispute. Back in the 30s and 40s, the 2d Circuit worked this issue over, and came to a far more sensible view of the matter than the court here did. It was expressed most forcefully by two of the great common law judges then on the bench, Learned Hand and Jerome Frank; in a case involving a musical composition infringement claim (Arnstein v [Cole] Porter], Judge Frank (joined by Hand) wrote:

The proper criterion on [the infringement] issue is not an analytic or other comparison of the respective musical compositions as they appear on paper or in the judgment of trained musicians. The plaintiff's legally protected interest is not, as such, his reputation as a musician but his interest in the potential financial returns from his compositions which derive from the lay public's approbation of his efforts. The question, therefore, is whether defendant took from plaintiff's works so much of what is pleasing to the ears of lay listeners, who comprise the audience for whom such popular music is composed, that defendant wrongfully appropriated something which belongs to the plaintiff … Expert testimony of musicians may also be received, but it should be utilized only to assist in determining the reactions of lay auditors. The impression made on the refined ears of musical experts or their views as to the musical excellence of plaintiff's or defendant's works are utterly immaterial on the issue of misappropriation; for the views of such persons are caviar to the general—and plaintiff's and defendant's compositions are not caviar.

And Judge Hand, in an earlier case (Nichols v Universal Pictures) involving not a music but a play (Abie's Irish Rose), had this to say:

The plaintiff has prepared an elaborate analysis of the two plays, showing a "quadrangle" of the common characters, in which each is represented by the emotions which he discovers. She presents the resulting parallelism as proof of infringement, but the adjectives employed are so general as to be quite useless. …

This is not the proper approach to a solution; it must be more ingenuous, more like that of a spectator, who would rely upon the complex of his impressions of each character. We cannot approve the length of the record, which was due chiefly to the use of expert witnesses. Argument is argument whether in the box or at the bar, and its proper place is the last. The testimony of an expert upon such issues, especially his cross-examination, greatly extends the trial and contributes nothing which cannot be better heard after the evidence is all submitted. It ought not to be allowed at all; and while its admission is not a ground for reversal, it cumbers the case and tends to confusion, for the more the court is led into the intricacies of dramatic craftsmanship, the less likely it is to stand upon the firmer, if more naive, ground of its considered impressions upon its own perusal. We hope that in this class of cases such evidence may in the future be entirely excluded, and the case confined to the actual issues; that is, whether the copyrighted work was original, and whether the defendant copied it, so far as the supposed infringement is identical.

And this is, I think, what many people (including me) do not understand about this verdict. We didn't hear what the "experts" had to say, and I guess they were persuasive, after having analyzed and dissected the two songs. But to my ear, the (a) lyrics are different, the (b) rhythms of the two songs are different, and the (c) harmonies are different. The similarity, like I (and others) have said, is just in "the sound"—the groove, the vibe, call it what you will that we don't have a really good name for but which is largely the engineer's doing. [There's not much to love in Blurred Lines, imho—but I do have to compliment the engineers, because the sound is pretty neat. It really does make you feel like you dropped into a 1970s house party]. That the experts found similarities that are not apparent from simply listening to the two recordings should be, as Frank and Hand said, entirely irrelevant to the case. It's too bad the case arose in the 9th Circuit, which has a much less sensible view of this matter than the 2d.

The Heirs

If you want a good laugh, take a look at the tearful, emotionally-wrenching statement given by Nona Gaye, Marvin Gaye's daughter, when the verdict was announced [available here]. Hilarious, though inadvertently so. Through her tears, she says "Right now, I feel free. Free from … Pharrell Williams' and Robin Thicke's chains and what they tried to keep on us and the lies that were told. … This ruling is a miracle"

As you watch and listen—and the full comic effect can only be appreciated by actually watching her statement—keep in mind that (obviously) she had absolutely nothing whatsoever to do with creating anything at issue in the case. Copyright is supposed to be about incentivizing creators to enrich our culture—Nona Gaye hasn't enriched our culture one bit, her father has. She is the beneficiary of the idiotically long duration of copyright protection, which will keep royalty money flowing into her pocket (and her kids', and her kids' kids', …) until 2054, 70 years after her father's death. To her, this is all about and only about the money; she's the owner of a lottery ticket that just got a lot more valuable—good for her. I'd be happy, too, with a few million bucks in my pocket. But "free of all the lies" and some kind of "miracle"—oh, please, spare me.

There's a very serious angle to this. The majority of the big ticket copyright cases are brought by people other than the creators or the artists themselves, but instead either by their publishers or record labels or some other entity that owns the copyright or, as here, by heirs after the artist has died. A while back I had this to say about the practice, commenting on the efforts by the heirs of Sir Arthur Conan Doyle—born in 1859!!—to keep the Sherlock Holmes royalties flowing in for as long as they possibly could:

Sir Arthur Conan Doyle was born in 1859. He is as distant a figure from my students, say, as Charles Dickens is to me—from, literally, another age. I can understand and even celebrate a copyright system that enriches Mr. Doyle a-plenty for the wonderful contributions that he made to our shared culture. But I cannot understand—and no rational person could possibly explain or justify, in my view—a copyright system that continues to transfer money from other creators and readers and viewers of movies to Mr Doyle's great-great-great-great-grandchildren, on account of those long-ago contributions. It is ridiculous and an embarrassment to us all.

There's a reason that the artists themselves are much more reasonable than these third parties when it comes to enforcing their copyrights: they understand all too well that real art requires borrowing from things that came before. Everybody who is actually engaged in the creative process understands this—though it is irrelevant for the publishers and the heirs, who are just out to squeeze every last nickel out of their valuable copyright assets. Sure, there's a line that you shouldn't cross before appropriating other peoples' material—but the creators draw this line at a very different place than the accountants do, and unfortunately the accountants have taken control of our copyright law. I daresay Marvin Gaye himself would have been a hell of a lot more reasonable about what Thicke and Williams did than his heirs (and their bevy of lawyers) have been.

I'll give Bob Dylan, who knows a bit about creativity, the last word here. Commenting on charges that have dogged him for years about his penchant for borrowing and re-mixing from earlier work (and specifically that he used some of the poetry of Civil War poet Henry Timrod in some of his recent songs), he said:

Oh, yeah, in folk and jazz, quotation is a rich and enriching tradition. That certainly is true. It's true for everybody, but me. I mean, everyone else can do it but not me. There are different rules for me. And as far as Henry Timrod is concerned, have you even heard of him? Who's been reading him lately? And who's pushed him to the forefront? Who's been making you read him? And ask his descendants what they think of the hoopla. And if you think it's so easy to quote him and it can help your work, do it yourself and see how far you can get. Wussies and pussies complain about that stuff.

It's an old thing - it's part of the tradition. It goes way back. … I'm working within my art form. It's that simple. I work within the rules and limitations of it. There are authoritarian figures that can explain that kind of art form better to you than I can. It's called songwriting. It has to do with melody and rhythm, and then after that, anything goes. You make everything yours. We all do it.

Amen.

[UPDATE: I made some revisions to the original version of this posting in order to correct a mistake involving the starting date of federal protection for "sound recordings" (which I originally listed as 1978 instead of the correct date (1972). Thanks to Peter Hirtle for pointing this out to me]