Court Won't Rehear Blurred Lines Case, Bad News For Music Creativity

from the unfortunate dept

Thu, Jul 12th 2018 1:29pm — Mike Masnick

Back in March we wrote about the terrible decision by the 9th Circuit to uphold the also awful lower court ruling that the Pharrell/Robin Thicke song "Blurred Lines" infringed on Marvin Gaye's song "Got To Give It Up." If they had actually copied any of the copyright-protected elements of the original, this case wouldn't be a big deal. But what was astounding about this ruling is that nowhere is any copyright-protected expression of Gaye's shown to have been copied in Blurred Lines. Instead, they are accused of making the song have a similar "feel." That's... bizarre. Because "feel" or "groove" is not protectable subject matter under copyright law. And yet both the lower court and the appeals court has upheld it. And now, the 9th Circuit has refused to rehear the case en banc, though it has issued a slightly amended opinion, removing a single paragraph concerning the "inverse ratio rule" of whether or not greater access to a song means you don't have to show as much "substantial similarity."

Again, this is a ruling that should greatly concern all musicians (even those who normally disagree with us on copyright issues). This is not a case about copying a song. This is a ruling that now says you can't pay homage to another artist. It's a case saying that you can't build off of another artist's general "style" or to create a song "in the style" of an artist you appreciate. This is crazy. Paying homage to other artists, or writing a song in the style of another artist is how most musicians first learn to create songs. It does no harm to the original artist, and often introduces more people to their work.

Pharrell and Thicke can (and perhaps will?) ask the Supreme Court to hear an appeal, but, as always, it's pretty rare to get the Supreme Court to do so. And, on top of that, as long as Ruth Bader Ginsburg remains on the court, the court has a terrible record on getting copyright cases right (and, yes, it's almost always Ginsburg writing the awful copyright rulings).

As we noted last year, this case is already having chilling effects on musicians and songwriters who are literally afraid to even name check their influences for fear of a lawsuit. And, similar lawsuits are rapidly being filed. Indeed, Ed Sheeran is dealing with a lawsuit over whether or not his song "Thinking Out Loud" is too close to Marvin Gaye's "Let's Get It On." The songs do have the same chord progression, but are pretty different. Of course, having the same chord progression allowed Sheeran to sometimes easily perform a mashup of the two songs at concerts. But again, that's a tribute, but it's now being used against him.

Of course, that case has taken a really weird turn in that a new "party" has entered the fray. An organization called "Structured Asset Sales" wants to be a plaintiff too. And because you probably don't recall Structured Asset Sales last big chart topping hit, it's apparently an operation that "securitized" future earnings of various musicians (remember Bowie Bonds?). And one of the artists using Structured Asset Sales is Ed Townsend Jr., a co-author of "Let's Get It On". The Hollywood Reporter link above has a lot more details on what's going on in that case (which is wacky). In short, SAS tried to get into an earlier case filed by Townsend's heirs. That attempt to join the lawsuit was rejected by the courts, and while that's being appealed, it has filed a new lawsuit.

And all this because two songs have the same general chord progression. And, I realize for some non-music nerds, having the same chord progression may suggest copying, I'd suggest you watch the following few videos to disabuse you of that notion:

Watch both of those videos, and then recognize how all those songs could potentially be infringing under the Blurred Lines ruling, which tragically will stand thanks to the 9th Circuit's failure to correct its horrible mistake. Hopefully the Supreme Court will actually weigh in, but that's both unlikely and... potentially not helpful.

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Filed Under: 9th circuit, blurred lines, copyright, ed sheeran, ed townsend jr., groove, marvin gaye, pharrell, robin thicke, styles
Companies: structured asset sales

25 Comments

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Gary (profile), 12 Jul 2018 @ 1:25pm

So close
Well that was disappointing. It seems the copyright creep is just going to push onward to cover more things for longer periods.
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Anonymous Coward, 12 Jul 2018 @ 1:33pm

Re: So close
This complaint is too similar to some one else's complaint. Please cease and desist or face $500,000 in fines.
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Anonymous Coward, 12 Jul 2018 @ 1:52pm

The footnote on page 62 is interesting. It says that the court refused to allow the Axis of Awesome video to be played for the jury. Why? It would seem that video would have been VERY relevant to the argument for musical similarities.
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Anonymous Coward, 12 Jul 2018 @ 1:56pm

Just think of what the likes of Prenda could do based on this ruling, it could become worse that patent trolling.
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Bruce, 12 Jul 2018 @ 3:43pm

Axis of Awesome - Go Aussies!
And speaking of asshats with stupid copyright cases, check out this one by a US RESTAURANT chain, who took their name from a Rolling Stones song, who are suing an Oz rock-punk BAND, who also took their name from the SAME song.

http://www.abc.net.au/news/2018-07-13/us-fastfood-giant-sues-wollongong-band-for-copying-name/9 980950

Perhaps if you've ever eaten in these restaurants you might just be saying "goodbye, Ruby Tuesdays".
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Anonymous Coward, 12 Jul 2018 @ 4:29pm

Abolish Copyright
Yet another example of why.
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That Anonymous Coward (profile), 12 Jul 2018 @ 4:42pm

IIRC I thought the company was buying a portion of the rights, which should raise the question of how many times can rights be sub-divided without some sort of database about who owns what.

But none of this will matter, because 4 corps will fight for the rights to the various styles and we'll get corp pop for the next 150 years.
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That One Guy (profile), 12 Jul 2018 @ 5:18pm

Re:
It would seem you answered your own question. Can't have the jury seeing how often musicians borrow similar sections, or use similar techniques after all, they might make the 'wrong' ruling.
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That One Guy (profile), 12 Jul 2018 @ 5:23pm

"The more you tighten your grip..."
Funnily enough rulings like this just make it even more likely that the general public will completely ignore copyright law(more than they already do anyway).

Now it's not just outright copying that's not allowed, you're not allowed to have a song that's similar to another one. Tell people that you're not allowed to make tribute songs, to celebrate music you enjoyed by making something like it and I imagine most of them are not going to be on the 'yeah, that sounds about right' side.
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musicologize (profile), 12 Jul 2018 @ 5:53pm

Re:
Moreover the same footnote says the court DID allow the playing of a mashup of GTGIU and Blurred Lines as an illustration of their similarity. I can see how these two things happen in court, but as a musicologist, it's rather galling.
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R2_v2.0 (profile), 12 Jul 2018 @ 5:59pm

The Vibe
"It's justice. It's law. It's the vibe"

- quote from the most Australian movie ever made, "The Castle"
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That One Guy (profile), 12 Jul 2018 @ 6:22pm

Re: Re:
Galling would seem to put it lightly.

'Here's a demonstration of how similar these songs are to each other, to demonstrate nefarious copying. Not allowed is a demonstration of how common this is because it happens all the time as it's just what people do.'
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PartTimeZombie (profile), 12 Jul 2018 @ 8:43pm

Re: "The more you tighten your grip..."
Which is why I hope this case succeeds and is appealed to the Supreme Court, who uphold it.
IP law has turned into something big companies use to squash potential competitors and if the music business starts to feel some of that pain, maybe there will be some change.
Probably not though.
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techflaws (profile), 12 Jul 2018 @ 9:42pm

Re: Re: Re:
So, why do they get away with it? I mean, how come they just get to focus on "feel" or "groove" if it's simply not protectable subject matter under copyright law?
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That One Guy (profile), 12 Jul 2018 @ 10:32pm

Re: Re: Re: Re:
Ignorance of the law(willful or otherwise), and/or 'this does't feel right' used as a justification for a ruling vs 'this is what the law actually says'.
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The Wanderer (profile), 13 Jul 2018 @ 6:29am

Re: Re: Re:
I'd guess that the rationale would be "just because people do it all the time, that doesn't make it OK, and trying to argue in court that it should be allowed because people do it all the time is not legitimate, so presenting evidence which only serves to show that people do it all the time is not permitted".

In other words, trying to prevent the defense from convincing the jury to rule based on what they think the law "should" be, rather than what the law is.
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TripMN, 13 Jul 2018 @ 7:21am

Re: Re: Re: Re:
The problem is if you know anything about music and copyright, you know there is no copyright infringement on similar but not the same. Or in the case of some really famous musicians, if you stole from long enough ago that copyright was not yet eternal.

As has been said here many times, many songs that sound similar make a genre. Without genres we cannot classify music and the general public cannot find new music that they might like.

Also, because of the nature of western music (12 different tones per octave, major and minor keys of each tone, and only a handful of standard chords), there are only so many combinations that sound good before you start to have similarities in music.
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Toom1275 (profile), 13 Jul 2018 @ 7:32am

The court's "logic":

I drive a blue van.
That guy has a blue van, therefore he must have stolen mine.

*headdesk*
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Ninja (profile), 13 Jul 2018 @ 7:35am

It's sadly ironic that the one to kill music is not going to be piracy but rather copyright itself. Then again it's an announced tragedy.
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musicologize (profile), 13 Jul 2018 @ 12:49pm

Re: Re: Re: Re:
@techflaws As I understand it, nobody argued that you could protect a groove or genre. Copyright law is unchanged. They convinced a jury that the songs were similar. Were the jurors thinking, "it just seems wrong?" Perhaps. But the plaintiffs are not accepting of the idea that they successfully copyrighted a groove.
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That One Guy (profile), 13 Jul 2018 @ 5:03pm

Re: Re: Re: Re:
In other words, trying to prevent the defense from convincing the jury to rule based on what they think the law "should" be, rather than what the law is.

But that's the kicker, that's exactly what the plaintiffs did. They claimed ownership over something that copyright doesn't cover, as noted in the article.

But what was astounding about this ruling is that nowhere is any copyright-protected expression of Gaye's shown to have been copied in Blurred Lines. Instead, they are accused of making the song have a similar "feel." That's... bizarre. Because "feel" or "groove" is not protectable subject matter under copyright law.

The ruling was made based upon what the jury thought copyright 'should' be, as if it had been on what the law actually said it would have been tossed.
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Wendy Cockcroft, 16 Jul 2018 @ 5:40am

Re: Abolish Copyright
Yet another reason to agree with you.
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Wendy Cockcroft, 16 Jul 2018 @ 5:42am

Re: Re: Re: Re: Re:
Copying =/= theft.
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Wendy Cockcroft, 16 Jul 2018 @ 5:46am

Re: Re: Re: Re: Re:
And that's the kind of thing that's got me on the "Abolish copyright" train. When copyright is presented as property, that's exactly what happens. Greedy people blinded by the $ signs in their eyes can't understand the nuance between "copyright-like elements" as explained by Mike and "actual property, like a house or a car which you own forever till you choose to dispose of it."

If people are so dumb they can't make that differentiation, abolish copyright. Get rid. Then think of a viable way to replace it that meets the needs of both the artists/creatives, etc. and the public in equal balance.
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Wendy Cockcroft, 16 Jul 2018 @ 5:49am

Re:
Eh, more like, "I drive a blue van. That guy drives a blue van, so he owes me eleventy thousand bajillion dollarz. Hahahahahahhaaaa! I'm rich! I'm rich! I can quit my day job and live off the royalties forever!"
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