Marvin Gaye Family Not Done With Pharrell Just Yet: Bring Him Back To Court Claiming Perjury

from the oh-come-on dept

The Blurred Lines lawsuit is the case that just keeps on giving... if the gift you're looking for is legal shenanigans and ridiculous situations. As you'll recall, that was the case in which Marvin Gaye's family suggested that because the Pharrell/Robin Thicke song "Blurred Lines" paid homage to Marvin Gaye's "Got To Give It Up" with a similar groove, that it was infringing on Gaye's copyright. The whole thing was crazy -- and somehow the court bought it. Despite there not being any actual copying of any copyright-protected content, just the mere similarity of feeling in the song is enough to infringe.

This has created quite a frenzy of nonsense, with artists now afraid to even mention their inspirations, lest they get sued, and sued again for every song they release. The situation has gotten so insane that even the RIAA has stepped in to say that perhaps copyright has gone too far in protecting works. Yes, the RIAA said that copyright may be protecting too much. This is pigs flying, snow in hell, cats and dogs living together, madness.

And, believe it or not, the original case apparently is not fully over yet. During the original case, Pharrell gave a deposition claiming that he didn't intend to copy Marvin Gaye:

"I did not go in the studio with the intention of making anything feel like, or to sound like, Marvin Gaye."

But... in a recent GQ published video interview between Pharrell and famed music producer Rick Rubin, Pharrell made an off-hand comment about this same issue. Throughout the interview, he talks about "channeling" other artists when he's in the studio.

Then somewhere along the line he mentions the Blurred Lines mess, by saying (around 28 minutes into the interview):

Pharrell: But I think for the most part, what we always try to do was reverse engineer the songs that did something to us emotionally and figure out where the mechanism is in there, and as I said to you before, try to figure out if we can build a building that doesn't look the same but makes you feel the same way. I did that in Blurred Lines and got myself in trouble.

Rubin: Ridiculously.

Pharrell: Stevie Wonder told me, he said, 'you gotta get the right musicologists in there because juries don't understand -- it's very technical what you've done.'

Rubin: Because the song is nothing like the song

Pharrell: Nope, but the feeling was.

Rubin: But the feeling is not something you can copyright.

Pharrell: No, you can't copyright a feeling. All salsa songs sound pretty much the same.

Rubin: Yes. And reggae songs. Any genre.

Pharrell: 100 percent.

Rubin: Trap music sounds relatively similar.

Pharrell: But here's the difference. What we failed-- And it hurt my feelings. 'Cause I would never take anything from anyone. And that really set me back.... But I was really hurt, because what I realized all too late was that what he was trying to tell me was that I needed to do was use my gift to make music, to reverse engineer the disparity between the truth and the jury's uneducated opinions. And I say that, because rayon and silk feel the same, but we understand that there's a clear difference. And that was what happened.

Rubin: Yeah.

Pharrell: Like, I really made it feel so much like it, that people were like, oh, I hear the same thing.

And, so, in a new filing by the Gaye Estate (first noted by THREsq), they're claiming that Pharrell perjured himself in his deposition by saying that he had no intention to channel Gaye:

In the November 4, 2019 Interview, among other things, Williams admits the following:

(1) in creating a new song, he often tries to “reverse engineer” an older song that did “something to us emotionally,” so that he can “figure out where the mechanism is in [the original song],” and “build a building that doesn’t look the same but makes us feel the same way,” and that he “did that in ‘Blurred Lines’ and I got myself in trouble;” and

(2) he actually did too good of a job in this reverse engineering when it came to “Got To” and “Blurred”: “I really made it [‘Blurred’] feel so much like it [‘Got To’], that people were like, oh, I hear the same thing.”

As discussed further below, these admissions are irreconcilable with Williams’s repeated, sworn testimony in this action that: neither “Got To” nor Marvin Gaye ever entered his mind while creating “Blurred,” that he did not try to make “Blurred” feel like “Got To” or sound like Marvin Gaye, and that when creating music Williams looks “into oblivion. We look into that which does not exist.”

Hilariously, the filing tries to make sure that the court does not pay attention to other parts of the interview -- notably, the long section about how it's ridiculous to argue that you can copyright a "feeling."

As a matter of introduction and clarity, and to avoid all doubt so there is no misunderstanding about what this Motion is not about: this Motion is not about whether Williams and Robin Thicke (“Thicke”) committed copyright infringement with respect to “Got To.” This Motion is also not about Williams’s very public pronouncements in this Court, in the media, in the November 4, 2019 Interview, and elsewhere that one cannot copyright a feeling, that all music within a genre supposedly sounds the same, and his belief that “Blurred” and “Got To” are not compositionally the same (one supposedly being “rayon” and one being “silk” according to Williams). The jury, this Court, and the Ninth Circuit Court of Appeals have all spoken on those issues.

The whole case is a mess, but this part of the dispute, including this silly claim of perjury, is just an attempt to get even more money out of Pharrell, this time in seeking attorneys' fees for the Gaye family's lawyers.

And, of course, all it will really do is remind musicians to never credit their sources, to never talk about their process, and to hinder future musicians for years, if not decades. All for an extra buck.

Filed Under: blurred lines, copyright, feelings, groove, inspiration, marvin gaye, perjury, pharrell, pharrell williams, rick rubin

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

from the unfortunate dept

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.

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

Appeals Court Says It's Okay To Copyright An Entire Style Of Music

from the this-is-really,-really-bad dept

Oh boy. We had hoped that the 9th Circuit might bring some sanity back to the music copyright world by overturning the awful "Blurred Lines" ruling that has already created a massive chilling effect among musicians... but no such luck. In a ruling released earlier this morning, the 9th Circuit largely affirmed the lower court ruling that said that Pharrell and Robin Thicke infringed on Marvin Gaye's copyright by writing a song, "Blurred Lines," that was clearly inspired by Gaye's "Got To Give It Up."

No one has denied that the songs had similar "feels" but "feeling" is not copyrightable subject matter. The compositions of the two songs were clearly different, and the similarity in feel was, quite obviously, paying homage to the earlier work, rather than "copying" it. For what it's worth, there appears to be at least some hesitation on the part of the majority ruling, recognizing that this ruling could create a huge mess in the music world, so it tries (and mostly fails) to insist that this ruling is on narrow grounds, specific to this case (and much of it on procedural reasons, which is a kind way of suggesting that the lawyers for Pharrell and Thicke fucked up royally). As the court summarizes:

We have decided this case on narrow grounds. Our conclusions turn on the procedural posture of the case, which requires us to review the relevant issues under deferential standards of review.

Throughout the majority ruling, you see things like the following:

We are bound by the “‘limited nature of our appellate function’ in reviewing the district court’s denial of a motion for a new trial.” Lam, 869 F.3d at 1084 (quoting Kode, 596 F.3d at 612). So long as “there was some ‘reasonable basis’ for the jury’s verdict,” we will not reverse the district court’s denial of a motion for a new trial. Id. (quoting Molski, 481 F.3d at 729). “[W]here the basis of a Rule 59 ruling is that the verdict is not against the weight of the evidence, the district court’s denial of a Rule 59 motion is virtually unassailable.” Id. (quoting Kode, 596 F.3d at 612). When that is the case, we reverse “only when there is an absolute absence of evidence to support the jury’s verdict.” Id. (quoting Kode, 596 F.3d at 612). “It is not the courts’ place to substitute our evaluations for those of the jurors.” Union Oil Co. of Cal. v. Terrible Herbst, Inc., 331 F.3d 735, 743 (9th Cir. 2003). Of note, we are “reluctant to reverse jury verdicts in music cases” on appeal, “[g]iven the difficulty of proving access and substantial similarity.” 17 Three Boys Music, 212 F.3d at 481.

The Thicke Parties face significant, if not unsurmountable, hurdles. First, we are generally reluctant to disturb the trier of fact’s findings, and have made clear that “[w]e will not second-guess the jury’s application of the intrinsic test.” Id. at 485. Second, our review is necessarily deferential where, as here, the district court, in denying the Rule 59 motion, concluded that the verdict was not against the clear weight of the evidence. Finell testified that nearly every bar of “Blurred Lines” contains an area of similarity to “Got To Give It Up.” Even setting aside the three elements that trouble the Thicke Parties (“Theme X,” the bass line, and the keyboard parts), Finell and Dr. Monson testified to multiple other areas of extrinsic similarity, including the songs’ signature phrases, hooks, bass melodies, word painting, the placement of the rap and “parlando” sections, and structural similarities on a sectional and phrasing level. Thus, we cannot say that there was an absolute absence of evidence supporting the jury’s verdict.

That's just one example of many where the court more or less says "our hands are tied to review the jury's decision."

The whole thing is a mess, though, and is going to create lots of problems. And, honestly, I don't think I can do a better job than the one dissenting judge, Judge Jacqueline Nguyen, who seems to fully understand the issues at play and what a disaster this ruling is.

The majority allows the Gayes to accomplish what no one has before: copyright a musical style. “Blurred Lines” and “Got to Give It Up” are not objectively similar. They differ in melody, harmony, and rhythm. Yet by refusing to compare the two works, the majority establishes a dangerous precedent that strikes a devastating blow to future musicians and composers everywhere.

Judge Nguyen isn't pulling any punches.

The majority, like the district court, presents this case as a battle of the experts in which the jury simply credited one expert’s factual assertions over another’s. To the contrary, there were no material factual disputes at trial. Finell testified about certain similarities between the deposit copy of the “Got to Give It Up” lead sheet and “Blurred Lines.” Pharrell Williams and Robin Thicke don’t contest the existence of these similarities. Rather, they argue that these similarities are insufficient to support a finding of substantial similarity as a matter of law. The majority fails to engage with this argument.

Finell identified a few superficial similarities at the “cell” level by focusing on individual musical elements, such as rhythm or pitch, entirely out of context. Most of these “short . . . pattern[s]” weren’t themselves protectable by copyright, and Finell ignored both the other elements with which they appeared and their overall placement in each of the songs. Her analysis is the equivalent of finding substantial similarity between two pointillist paintings because both have a few flecks of similarly colored paint. A comparison of the deposit copy of “Got to Give it Up” and “Blurred Lines” under the extrinsic test leads to only one conclusion. Williams and Thicke were entitled to judgment as a matter of law.

Also, I'm glad to see a judge recognize this point (even if it's in a dissent) that many in the legacy copyright industries deny (even though it's actually to their benefit):

The purpose of copyright law is to ensure a robust public domain of creative works.... While the Constitution authorizes Congress to grant authors monopoly privileges on the commercial exploitation of their output, see U.S. Const. art. I, § 8, cl. 8, this “special reward” is primarily designed to motivate authors’ creative activity and thereby “allow the public access to the products of their genius.”... Accordingly, copyrights are limited in both time and scope. See U.S. Const. art. I, § 8, cl. 8 (providing copyright protection only “for limited Times”); Sony Corp., 464 U.S. at 432 (“This protection has never accorded the copyright owner complete control over all possible uses of his work.”); see also Berlin v. E.C. Publ’ns, Inc., 329 F.2d 541, 544 (2d Cir. 1964) (“[C]ourts in passing upon particular claims of infringement must occasionally subordinate the copyright holder’s interest in a maximum financial return to the greater public interest in the development of art, science and industry.”).

Judge Nguyen also points out a key point that you would hope that any judge hearing a copyright case would actually understand: copyright only covers the actual author's expression (and only the new and unique parts of it -- and only in limited ways). But that's not what the ruling in this case says:

An important limitation on copyright protection is that it covers only an author’s expression—as opposed to the idea underlying that expression.... Copyright “encourages others to build freely upon the ideas and information conveyed by a work.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349–50 (1991) (citing Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556–57 (1985))....

[....]

Such accommodations are necessary because “in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994) (quoting Emerson v. Davies, 8 F. Cas. 615, 619 (C.C.D. Mass. 1845) (Story, J.)). Every work of art “borrows, and must necessarily borrow, and use much which was well known and used before.” Id. (quoting Emerson, 8 F. Cas. at 619); see 1 Melville D. Nimmer & David Nimmer, Nimmer on Copyright § 2.05[B] (rev. ed. 2017) (“In the field of popular songs, many, if not most, compositions bear some similarity to prior songs.”). But for the freedom to borrow others’ ideas and express them in new ways, artists would simply cease producing new works—to society’s great detriment.

And while the dissent points out that two songs may share the same "groove," that's not nearly enough for it to be copyright infringement.

“Blurred Lines” clearly shares the same “groove” or musical genre as “Got to Give It Up,” which everyone agrees is an unprotectable idea. See, e.g., 2 William F. Patry, Patry on Copyright § 4:14 (2017) (“[T]here is no protection for a communal style . . . .”). But what the majority overlooks is that two works in the same genre must share at least some protectable expression in order to run afoul of copyright law.

And, incredibly, as Judge Nguyen points out, the majority fails to even attempt to say what copyrightable expression was duplicated in Blurred Lines:

The majority doesn’t explain what elements are protectable in “Got to Give It Up,” which is surprising given that our review of this issue is de novo. See Mattel, Inc. v. MGA Entm’t, Inc., 616 F.3d 904, 914 (9th Cir. 2010). But by affirming the jury’s verdict, the majority implicitly draws the line between protectable and unprotectable expression “so broadly that future authors, composers and artists will find a diminished store of ideas on which to build their works.” Oravec v. Sunny Isles Luxury Ventures, L.C., 527 F.3d 1218, 1225 (11th Cir. 2008) (quoting Meade v. United States, 27 Fed. Cl. 367, 372 (Fed. Cl. 1992)).

Worse still, the majority invokes the oft-criticized “inverse ratio” rule to suggest that the Gayes faced a fairly low bar in showing substantial similarity just because Williams and Thicke conceded access to “Got to Give It Up.”... The issue, however, isn’t whether Williams and Thicke copied “Got to Give It Up”—there’s plenty of evidence they were attempting to evoke Marvin Gaye’s style. Rather, the issue is whether they took too much. Copying in and of itself “is not conclusive of infringement. Some copying is permitted.” ... Copying will only have legal consequences if it “has been done to an unfair extent.” ... In determining liability for copyright infringement, the critical and ultimate inquiry is whether “the copying is substantial.” Id.

And of course, what has been "copied" to create the "groove" is not subject to copyright protection. Which you would think would be important in court. But the majority didn't bother.

The Gayes don’t contend that every aspect of “Blurred Lines” infringes “Got to Give It Up.” Rather, they identify only a few features that are present in both works. These features, however, aren’t individually protectable. And when considered in the works as a whole, these similarities aren’t even perceptible, let alone substantial.

Judge Nguyen then goes through, in fairly great detail, to explain (including with sheet music examples) why the copyright-protectable elements of the composition have not been copied here. This is the kind of analysis that should have been done before, and should have happened at the lower court. But it did not.

Judge Nguyen then points out that ruling this way on narrow procedural grounds is also nonsense.

The majority insists that the verdict is supported by the evidence but tellingly refuses to explain what that evidence is. Instead, it defends its decision by arguing that a contrary result is impossible due to Williams and Thicke’s purported procedural missteps.... While the procedural mechanism for granting relief is beside the point given the majority’s holding, there’s no such obstacle here.

I agree that we normally are not at liberty to review the district court’s denial of summary judgment after a full trial on the merits.... This rule makes eminent sense. Once a trial has concluded, any issues relating to the merits of the parties’ dispute “should be determined by the trial record, not the pleadings nor the summary judgment record.” ... However, there is little difference between reviewing a summary judgment ruling and a jury verdict other than the source of the factual record... and here there are no material factual disputes. A completed trial does not prevent us from reviewing the denial of summary judgment “where the district court made an error of law that, if not made, would have required the district court to grant the motion.”

Nguyen really hits back on the majority for suggesting that this is just a dispute between competing experts over what was similar and what was not. As she rightly points out, that's a question that comes up only after you've shown that the elements being copied are actually copyrightable subject matter. And the lower court totally failed to do that, meaning this is an issue of law, not one of disputed facts. The law says these elements aren't protected. And that's important, but the court ignored it entirely.

No one disputes that the two works share certain melodic snippets and other compositional elements that Finell identified. The only dispute regarding these similarities is their legal import—are the elements protectable, and are the similarities substantial enough to support liability for infringement? ...

By characterizing these questions as a factual dispute among experts, the majority lays bare its misconception about the purpose of expert testimony in music infringement cases. As with any expert witness, a musicologist can’t opine on legal conclusions, including the ultimate question here—substantial similarity.... Her role is to identify similarities between the two works, describe their nature, and explain whether they are “quantitatively or qualitatively significant in relation to the composition as a whole,”.... The value of such testimony is to assist jurors who are unfamiliar with musical notation in comparing two pieces of sheet music for extrinsic similarity in the same way that they would compare two textual works.

In other words, the lower court, and the majority, both got so caught up in the Gayes' "expert" talking about the similarities of "the groove" that they forgot to even bother to check if a "groove" is copyrightable.

Finally, Nguyen points out that this disaster is going to haunt lots of people -- likely including the Gaye Estate, given how much of Gaye's own work was built on those who came before him:

The Gayes, no doubt, are pleased by this outcome. They shouldn’t be. They own copyrights in many musical works, each of which (including “Got to Give It Up”) now potentially infringes the copyright of any famous song that preceded it.

Be careful what you wish for. You just might get it. And then get sued on the same grounds. It seems quite likely that we'll now see a flood of similar lawsuits (some have started already, but this will open the floodgates).

Filed Under: 9th circuit, blurred lines, copyright, copyrightable subject matter, grooves, marvin gaye, music, pharrell, robin thicke

No Inspiration Without Payment: Ed Sheeran Sued For Two Songs Sounding Too Similar To Old Songs

from the that's-not-how-copyright-is-supposed-to-work dept

There's a fairly long history of lawsuits over songs sounding too "similar" -- from the lawsuit over George Harrison's "My Sweet Lord" sounding too much like "He's So Fine" to the Verve getting sued by The Rolling Stones for the hit "Bittersweet Symphony" sounding similar to the Stones' "The Last Time." But after last year's verdict in favor of Marvin Gaye's estate in the "Blurred Lines" case, the floodgates seem to have opened, with a bunch of similar lawsuits over songs that sound vaguely similar, but not much more. A couple of months ago, in a bit of a surprise, Led Zeppelin actually won its case over whether or not it had infringed on someone's copyright in "Stairway to Heaven," so there's at least some hope that not every "similar sounding" song will face a copyright lawsuit -- but even then the arbitrariness of these decisions seems problematic.

It's especially problematic when the songs are clearly different, even if one was inspired by the other, or was written as sort of an homage to the original. It used to be that this kind of building on the works of others was a sign of flattery and something people should be happy about. But with millions of dollars being thrown around thanks to statutory damages, big lawsuits seem to be the answer instead. Earlier this week, hit pop singer Ed Sheeran was hit with a new lawsuit also claiming that he infringed on an old famous Marvin Gaye tune, "Let's Get It On." This time, it's not the Gaye Estate that's suing (as in the "Blurred Lines" case), but rather the estate of a songwriter on that song, Ed Townsend. The accusation is that Sheeran's hit "Thinking Out Loud" infringes on "Let's Get It On." Here are both tracks: The bass lines are definitely similar, but that's really about it. They're pretty different songs in almost every other aspect. And that bass line is not exactly the most complex or inventive bass line. Of course, people definitely noticed similarities in the bass lines early on. Many reviews mentioned it, and (of course) someone created a YouTube mashup (which I think is actually better than the Sheeran original, but that's a personal preference...). But of course you can mashup lots of songs that way and it hardly means copyright infringement.

Since no one else reporting on this has actually shared the filings, I thought I'd fix that. You can read it here or embedded below. There's not much detail in there other than the claim that "Thinking Out Loud" has copied "the heart" of "Let's Get It On." It claims that "the melodic, harmonic and rhythmic compositions" are "substantially and/or strikingly similar" between the two songs. They are, of course, demanding statutory damages, because why not?

Meanwhile, this is the second lawsuit of this nature against Sheeran in just the last few months. In early June, he was sued over another one of his hit songs, "Photograph," with the lawsuit claiming it was a note-for-note copy of the song "Amazing" by Matt Cardle (written by the plaintiffs in that lawsuit, Martin Harington and Thomas Leonard). In that case, again there are similarities between the two, but they're basically both just guitar ballads, not all that unlike tons of singer/songwriter guitar ballads with pretty basic progressions.

But, really, this whole focus on these kinds of lawsuits seems really damaging to the way music is created. Being inspired by other musicians or wanting to write something that "feels like" another artist is pretty standard. And it should never be copyright infringement. These are all different songs and they should stand and fall on their own power, not because of some stupid copyright claim. But, of course, thanks to the recording industry ranting on and on about "ownership" of "intellectual property," combined with the massive rewards for winning a copyright lawsuit (thanks to statutory damages), this is what we end up with -- a world where being creative in a manner that is inspired by someone else, or in homage to them, is called "theft" by some. That seems like it's going to create a massive chilling effect on musicians and songwriters and the way they create music.

Filed Under: copyright, ed sheeran, ed townsend, homage, inspiration, let's get it on, marvin gaye, photograph, thinking out loud

Recording Industry Thinks Famous Dead Musicians And Their Personal Struggles Will Get People To Stop Pirating

from the because-what? dept

We've discussed the legacy entertainment industry's bizarre infatuation with the idea that if they just "educate" people better, they'll magically stop gravitating to infringing content. This strategy has never worked, because it completely misdiagnoses the issue. Piracy has never been an education issue. It's been a service issue. Yet, year after year, the legacy entertainment industry wastes money on ever more ridiculous campaigns, each time thinking that shocking or scaring individuals will somehow get them to stop infringing. None of these campaigns has ever made even the slightest dent in anything, other than as fodder for parody. And, now, TorrentFreak alerts us to the latest "anti-piracy" ad campaign, dreamed up by the folks at Leo Burnett, apparently on behalf of Virgin Radio. Apparently, someone thought that if they featured famous dead musicians, who had lifelong struggles with depression or self-image, that this would somehow convince people to not infringe any more, because "if you knew what went into it, you wouldn't steal it." Almost nothing in this campaign makes sense, nor does it seem likely to work. First of all, most people who are getting access to infringing music don't think they're "stealing" it in the first place, so the tag line is nonsensical. Second, choosing super successful musicians, even those with very serious personal demons, isn't likely to generate that much sympathy concerning "Oh, they didn't make more money from the music that made them super rich and famous already."

And, of course, it's just damn creepy to somehow be pinning some sort of weird guilt trip on people, as if infringement somehow added to the personal struggles of Elvis Presley and Marvin Gaye? Huh? It doesn't make any sense at all. And while Winehouse at least lived in a time when there was widespread infringement, that would seem to have been fairly low on the list of things that concerned her.

And yet, Leo Burnett is acting as if this is some sort of noble effort, "taking a stand against piracy" rather than a fairly disgusting exploitation of dead artists who had personal demons while they were alive. Burnett calls it "a strong platform to build on for anti-piracy," which suggests an ad agency so out of touch and clueless, you kind of have to wonder how they stay in business.

Filed Under: advertising campaign, amy winehouse, anti-piracy, copyright, education, elvis presley, home taping is killing music, infringement, marvin gaye
Companies: leo burnett, virgin radio

Years Of Brainwashing The Public Into Thinking Everything Creative Must Be 'Owned' Has Led To This New Mess

from the culture-is-about-sharing dept

We have already written about the ridiculousness of a jury awarding over $7 million from Pharrell Williams and Robin Thicke to the children of Marvin Gaye, because their song "Blurred Lines" sounds kinda (but not really) a bit like Gaye's "Got to Give it Up." The ruling is problematic on multiple levels, as many commentators are just now realizing. Copyright lawyer Fred von Lohmann pointed out that, technically, everyone who bought copies of "Blurred Lines" is now infringing as well -- and that could apply to many others too, including Weird Al who famously did a hilarious parody of "Blurred Lines" called "Word Crimes." Weird Al, somewhat famously, makes sure to get permission to do his parodies, even though he could probably just use fair use. But... if "Blurred Lines" is infringing, there's no fair use argument to be made and Weird Al doesn't have permission from the Gaye Estate.

In other words: what a massive mess.

But that's just getting down into the technicalities, which may not matter if the Gaye Estate doesn't push the issue -- but could certainly come up in future cases. Plenty of other folks have pointed out that no matter what you think of any of the parties involved, this ruling is bad for music, bad for musicians and bad for songwriters. And, yes, musicians are concerned:

Los Angeles composer and producer Gregory Butler said Tuesday afternoon that his friends and colleagues in the industry were stunned by the verdict.

"You've made it illegal to reference previous material," said Butler, also a managing director at music startup WholeWorldBand. "I'm never going to come up with something so radically different that it doesn't contain references to something else."

Joe Escalante, an early member of the Vandals punk rock band and an entertainment law attorney, said he was concerned that the jury's decision had been driven by emotion rather than what's protected under copyright law.

"This may put a smile on the Gaye family's face, but it's a dark day for creativity, and in the end, this will be a net loss for music fans," he said. "Good news for lawyers and the bitter everywhere."

And that just hints at how it's bad for culture as well.

"Culture" itself is based on the very idea of common ideas that are shared. Common ideas are the core of every cultural movement. You share a "feel" because you want to identify yourself with a particular culture. Music in a genre has similarities for a reason. People identify with it for a reason. Locking up "the feel" of music decimates that nature of culture. We lose the "shared" part of "shared culture." And you would think that those who are often at the forefront of pushing the shared culture on everyone -- the major record labels -- would recognize this. And yet, they're partly responsible for this mess. Because they're the ones who have been pushing this myth for years that every single scrap of cultural output must be "owned" and doing anything they don't like to build off of it must be "infringing."

To be fair, this case is going to be appealed, and others have made perfectly reasonable arguments for how it's somewhat unique, in part based on the fact that Robin Thicke was an incredibly unsympathetic player in all of this -- admitting to lying and being inconsistent with his statements -- a fact that the Gaye's lawyer gleefully exploited. There is also the simple fact that this is a jury ruling and has no direct precedent-setting ability. That comes from appeals court rulings (and Supreme Court rulings), so we need to wait for any real precedent from this case. Of course, there have been some similar cases in the past, and the results often show the same sort of confusion about copyright, which is troubling.

And, it all seems to come back to this weird concept that people believe in this myth of "ownership" over cultural touchstones. The very things that should be shared: the "feel" of music, the "groove," the cultural sharing point that everyone builds off of. In discussing this case on Twitter, and talking about the horrible implications of the ruling, I noticed more than a few people on Twitter brush off all the concerns with a simple kind of "dude, they copied Gaye, so good ruling." Amazingly, one songwriter insisted that the ruling was correct and when I looked at his personal webpage it was all about how his music was "inspired" by other famous bands. Watch out, because now those bands could come after you.

This case has strayed far from actual copyright law into a made up fantasy land of copyright law -- one where people are punishing Thicke because they don't like him or the way he acted. They're also punishing both Williams and Thicke because of this amorphous idea that they must have "ripped off" Gaye because the songs feel the same. Even the press is confusing this. You see idiotic headlines, like this one from Vulture, which claims the lawsuit was about plagiarism. Except plagiarism isn't illegal. Copyright infringement is -- and plagiarism and copyright infringement are not the same thing. And even if this were "plagiarism" the question is plagiarism of what? Musicologists who have compared the two songs note that they're actually really, really different. The only thing that's the same is "the feel" of the songs. And "feel" is not something covered copyright.

But people know that plagiarism is "wrong" so they look at what Williams and Thicke did here -- copying the "feel" -- and they insist that it must be "wrong," even if copyright is only supposed to cover the specific expression written down in the sheet music for Gaye's song. The actual notes in "Blurred Lines" don't match that sheet music at all. But rather than sticking to the letter of the law, or even bothering to understand that copyright only covers specific expression, we keep getting this message pushed on us, by the RIAA, the MPAA and others, that every bit of culture must be "owned." And you can't do anything without a license. And people have heard that refrain so many times, that it infects their psyche.

As Kal Raustiala and Christopher Sprigman note in their own writeup about the ruling, the incredible thing is just how wrong it is on copyright. Yes, there may be some elements that were copied, but those are not the elements covered by copyright:

In short, what the “Blurred Lines” team copied is either not original or not relevant.

So when they see a situation here, where a less-than-likable character has made a song that was inspired by another, they assume that something must be wrong with it, and even if the law doesn't actually apply, dammit, they're just going to say that it does. It's the inevitable result of constantly pushing for a society where every bit of culture is owned under lock and key and the idea of sharing, remixing, reusing is deemed subversive, rather than the way that culture happens.

Whether or not this case really does have a long-term or wider-term impact may not really matter that much. But the results here are indicative of something bigger: and it's a dangerous view that undermines the very nature of culture itself.

Filed Under: blurred lines, copyright, culture, marvin gaye, ownership, pharrell williams, robin thicke

Jury Says Robin Thicke And Pharrell Infringed... Even If They Didn't Mean To: Told To Pay $7.3 Million

from the time-for-the-appeal dept

This isn't a huge surprise, even as it's ridiculously problematic, but the jury in the "Blurred Lines" copyright case has ruled that Robin Thicke and Pharrell Williams infringed on Marvin Gaye's song, and thus now owe $7.54 million. I had guessed that this is how the jury would rule solely because it was possible to play Blurred Lines lyrics over the Gaye composition and have it sound like it would fit -- and it seemed unlikely that the jury would understand enough about the specifics of copyright to not think that magically made it infringing. Of course, the fact is there are tons of songs that you could play over tons of other songs. That's why there are even multiple different comedy routines making this point.

The jury seems to understand that Thicke and Williams didn't do this on purpose -- even though there was a claim made that they said they wanted a song with "the feel" of a Marvin Gaye song. In fact, they said it wasn't willful infringement. That means that, according to this jury, merely being inspired by a genre and making a song with the same sort of "feel" is infringing. That's not how copyright law is supposed to work at all. One hopes that Thicke and Williams appeal and the appeals court slaps down this ridiculousness. Either way, this accidental infringement is worth a pretty penny, according to the jury:

Ultimately, a jury comprised of five women and three men heard dueling opinions regarding "Blurred Lines" and decided to order Thicke and Williams to pay $4 million in copyright damages plus profits attributable to infringement, which for Thicke was determined to be $1.8 million and $1.6 million.

That's less than the $25 million that the Gaye Estate was seeking, but still. That's crazy. It's likely that Thicke and Williams will appeal, and one hopes that they'll go through with it, rather than settle just to end things. This is a horrific copyright ruling that suggests that songs that merely have a similar feel may be infringing. It's a really dangerous precedent that completely undermines basic copyright law. In the meantime, the Gaye estate is asking for a permanent injunction on the sale of the song, which is just a negotiating tactic to pressure Thicke/Williams into settling...

Filed Under: blurred lines, copyright, marvin gaye, pharrell williams, robin thicke

As Blurred Lines Trial Starts, Take A Listen To The Special 'Copyright Only' Remix That Jurors Will Hear

from the everybody-get-midi dept

A few weeks ago, we noted how the copyright case over whether or not Pharrell Williams and Robin Thicke violated the copyright of Marvin Gaye with their song "Blurred Lines" was getting interesting, as it started to explore the somewhat blurry lines between what's actually covered by a copyright and what's not. Under the 1909 Act, under which Marvin Gaye's "Got to Give it Up" was recorded, only the specific sheet music is covered by the copyright, not the sound recording itself. And that represented a problem, since the Gaye Estate's attorneys wanted to play the original song, which has a number of similarities to Blurred Lines. But many of those similarities -- including the bass line and the party atmosphere in the background -- are not actually a part of the copyright covered composition. Thus, the judge told the Gaye family to figure out some way to create a recording that only included the copyright covered parts.

The EFF's Parker Higgins predicted that such a recording "likely sounds like the MIDI version that auto-played on a Geocities home page, or a rendition by the animatronic band at Chuck E. Cheese." Well, the enterprising folks over at Ratter got their hands on the recording so that you can take a listen too: It would seem that Parker's prediction was not that far off. The Gaye Estate is also presenting a remixed version of that MIDI-ized version with Pharrell and Thicke's lyrics put on top: From there, they certainly sound quite different. And, it's important to note (again) that sounding like something doesn't mean that it's infringing on that thing. If that were the case, we wouldn't have much in the way of culture, since so much of it is built off of the works of others. It will be interesting to see how a jury sees this, as I could see a confused jury thinking that merely because the lyrics fit over Gaye's song that somehow makes it infringing. Hopefully they can see through that, however.

The trial is currently going on and jury selection is certainly interesting, as they're asking people what kind of music they listen to and what they think of the famous video for "Blurred Lines" that included a bunch of naked models....

Filed Under: blurred lines, copyright, marvin gaye, pharrell williams, robin thicke

Blurred Lines Copyright Lawsuit Gets Funky As Judge Delves Into The Blurred Lines Of What's Really Copyrighted

from the talking-about-these...-blurred-lines dept

A year and a half ago, we wrote about the fact that the estate of Marvin Gaye had been threatening Robin Thicke and Pharrell Williams over their hit song "Blurred Lines" -- leading Williams and Thicke to file for a declaratory judgment that the song didn't infringe. As we noted at the time, even though Blurred Lines clearly has a similar "feel" to Gaye's "Got to Give it Up," having a similar "feel" is not infringement. There's the whole "idea/expression" dichotomy. The copyright is on the specific expression and not the general idea of the song. As the original filing noted, Gaye's heirs appeared to be "claiming ownership of an entire genre, as opposed to a specific work."

That case has been going on for a while now with a lot of back and forth -- including a wacky deposition last year in which Thicke admits to being too high to really have had much to do with the writing of the song. However, last week, the case shifted into high gear with an interesting set of rulings that highlight the somewhat... er... "blurred lines" between what is, and what is not, covered by the copyright in question.

The key issue: the heirs of Marvin Gaye own the copyright on the composition, but not on the sound recording. This came out back in October, when Williams and Thicke failed to win on summary judgment. However, in that ruling, the judge, John Kronstadt, realized that the family really only held the copyright on the composition that was a part of the sheet music, and not the recording itself (which includes a number of other elements) because, under the 1909 Copyright Act (which was in force when they registered the work), they did not take the proper steps to protect the full recording.

Because of this, things really started to get funky for them. First, the judge told the Gaye Estate that it could not play the recording of "Got to Give it Up," because the recording has elements that are not protected by the copyright on the composition -- and thus it would be unfair for the jury to hear the full sound recording, as they would be unable to separate out the copyright-covered composition elements with the non-copyright covered additions to the sound recording. Given that this is already about how much the songs "feel" similar, you can see why the Gaye Estate was rather apoplectic about this. Part of the excluded part, by the way, is the sound of Gaye's voice -- which the judge ruled was not covered by the copyright. Instead, Pharrell and Williams' lawyers suggested that the Gaye Estate could, instead, just have a musician come into court and play the song from the sheet music that was registered.

A couple of days later, the judge put out another ruling [pdf] after further considering the matter and changed that original ruling somewhat. In what appears to be an attempt to split the baby, he argued that while it would be wrong to let the Gaye family play the full recording... they could, instead, create a new version of the old sound recording that strips out the unprotected bits:

Therefore, although the Gaye sound recordings may embody the copyrighted compositions at issue, they also contain additional material. Consequently, there is a measurable risk that their wholesale admission into evidence would unfairly prejudice Plaintiffs.... In performing their intrinsic analysis of the songs, jurors would be required to filter out such elements as percussion, party sounds and backup vocals that could well influence their responses to the songs as “ordinary reasonable person[s],” and it could be difficult for them to mentally separate what is and is not protectable in this capacity.... Further, there would be little probative value in asking them to perform this challenging task. Thus, even if it were determined that Plaintiffs copied any unprotected elements embodied in the recordings, this would not tend to make it more or less probable that they copied protected elements of the compositions at issue.

There is merit, however, to Defendants’ contention that it could be difficult for them to present their evidence of intrinsic similarity if the sound recordings are inadmissible in their entirety.... As the ordinary person presumably cannot sight-read music and determine its sound, the sheet music alone is inadequate for purposes of this test....

Plaintiffs have proposed that the musicologists can “play[] on a keyboard at trial the elements of the sheet music deposit copies for the Gaye compositions that are claimed to be similar to Plaintiffs’ two songs.” ... Although this method may be helpful for focusing the jury’s attention on particular elements, if this were the only evidence presented as to the intrinsic qualities of the Gaye compositions, the jury may not have the opportunity to consider elements of the compositions that are properly within the scope of the subject matter protected by Defendants’ copyrights.

The copyright deposits are not comprised of notes alone. They contain lyrics to be sung to melodies, as well as certain other elements. The “total concept and feel” of a piano tune without words may differ from that of a vocal melody. For these reasons, relevant portions of the Gaye sound recordings that substantially reflect the subject matter of the copyright deposit sheets could have probative value with regard to the intrinsic characteristics of the works. To avoid prejudice to Plaintiffs, these recordings would need to be edited to remove all unprotected elements such as percussion and backup vocals. In addition, the length of such edited recordings would be considered in evaluating whether they were tailored to the allegedly protected content asserted by Defendants. Any potential prejudice to Plaintiffs caused by the airing of Gaye’s voice, which is not protected, is something that could perhaps be addressed by a limiting instruction.

Pursuant to this Order, Defendants may seek the admission of a sound recording. However, it will be necessary for Defendants to edit the versions of the recordings that were previously proffered. A new version must conform to the terms of this Order. It must be one that satisfies the Court that it strikes an appropriate balance between presenting a recording that contains what is reflected on the deposit copy, without including potentially prejudicial sounds that are not protected.

The judge also noted that, due to earlier moves in the case by the Gaye Estate (including submitting a mashup that has Gaye's vocals over Blurred Lines, that the legal team of the Estate "possess the technical capabilities to isolate protected from unprotected elements of the recordings of their compositions" so they need to get to work on that.

This seems like exactly the right legal ruling. The judge properly noted that only part of the song is actually covered by copyright, and it would be hellishly unfair to use the elements of the song that are not covered by copyright (including Gaye's voice) to prejudice the jury. He's really trying to make sure that the trial turns on the parts that are actually covered by copyright. But, of course, the Gaye Estate hates that, because it does seem like, if anything was copied, it may actually have been the unprotected parts of Gaye's song -- which, in being unprotected are totally free to be copied.

In response, the family is looking to appeal the ruling, as they're not at all happy with this turn of events, arguing that it's crazy and unprecedented. To read their filing [pdf] on the matter, you might think that the ruling to only play the protected parts would bring down all of Western civilization.

The Court’s ruling would have a devastating impact on the rights of owners of pre-1978 musical compositions by allowing wholesale copying of compositional elements not found in pre-registration published versions of the works or within the deposit copies themselves. For example, under this Court’s ruling, a clever infringer would be able to compare sheet music or deposit copy lead sheets of the works of the Beatles, The Rolling Stones, Elvis Presley, and, of course, Marvin Gaye, with the composition as embodied in the recordings of those icons, and take with impunity all compositional elements not found within the sheet music or deposit copies. It would create a situation where the compositions in the recordings are derivative works incapable of copyright protection because, as pre-1978 works, the recordings could not be submitted as the musical compositions. That is not and cannot be the law.

Actually, that could be and is the law. You only get to exclude uses on the things actually covered by copyright.

And, in response to the Gaye Estate, the lawyers for Williams and Thicke have hit back as well pointing out that the judge got it right, and the Gaye Estate is trying to effectively claim copyright over uncopyrighted content. Their opposition [pdf] is a good read as well:

Marvin Gaye never owned a copyright in “Got to Give It Up.” His publisher, Jobete, owned the copyright. The copyright notice at the bottom of each deposit copy states: “© [year] Jobete Music Company, Inc.” The copyright only descended to his heirs after his death because the renewal rights vested in his heirs as a matter of law when Marvin Gaye died. It was never Marvin Gaye’s song.

Whatever Marvin Gaye allegedly did in the recording studio to create other musical elements, and for which there is no evidence, anyway, has no bearing on the scope of any copyright under the 1909 Act, and certainly not on Jobete’s copyright.

The 1909 Act is what it is. There is nothing unfair or unjust about it. There is no reason for the Court to change its rulings because Defendants do not like them, think they are unfair, or make hyperbolic claims about the supposed impact on the music industry. The simple fact is that, prior to 1978 (and after), compositions for popular music were considered to be the melody, harmony, and lyrics—i.e., the song. No songwriter considered a hi-hat part, vocal “woo,” falsetto vocal style, omission of a guitar, keyboard part, or other element of a sound recording of the song to be the song itself. And if they did, they included that element in the written composition they published with notice—just as Jobete did hear with a “bass intro” in “Got to Give It Up.” Defendants now are facing a jury trial and wish that they owned something other than the published composition that is nothing like “Blurred Lines.” Their desire to distract and mislead the jury is not basis for reconsideration.

As for the massive wave of infringement the Gaye Estate lawyers predict? Williams and Thicke's lawyers point out -- as we did above -- that this doesn't make any sense at all. The law only protects the stuff covered by copyright:

Defendants’ dire warnings about the demise of the United States copyright law as a result of this Court’s pretrial rulings are greatly exaggerated. Defendants argue that if pre-1978 copyrights are limited to the published compositions that were copyrighted, then anyone can copy composition al material in any pre-1978 sound recordings that was not copyrighted. Defendants are absolutely correct. That is how copyright works.

Later, they remind the court and the Gaye Estate that, indeed, since under the 1909 Act -- until 1972 -- sound recordings weren't subject to copyright at all, the Gaye Estate seems to be trying to rewrite history.

Indeed, sound recordings themselves were not subject to copyright under the 1909 Act prior to 1972. Elvis Presley’s famous sound recordings from the 1950s and 1960s are not subject to statutory copyright. There is nothing unfair or wrong about that. Congress provided the protection it provided.

As the lawyers point out, this didn't mean that you couldn't protect songs under copyright, it's just that you had to do it right:

Defendants argue that the Court’s ruling “would create a situation where the compositions in the recordings are derivative works incapable of copyright protection because, as pre-1978 recordings, the recordings could not be submitted as the musical compositions.” ... This assertion is flat out wrong. Compositions in the sound recordings could always be fully protected—all that was required was to publish sheet music with notice affixed that embodied all the compositional elements in which copyright was claimed. Any vocal or instrumental part can be notated. Lead sheets were common because songwriters generally did not consider the performance elements (drums, bass, etc.) to be the composition: the “song” was the melody, harmony, and lyrics. Defendants’ “notion that common use of lead sheets somehow precluded a composer in the 1970s from submitting a score indicating all instrumental or vocal elements in which the composter claimed a copyright is without foundation.”

In short, the Gaye Estate wants to go back in time and pretend that under the 1909 Act they have a copyright on the sound recording, even though the law is clear that they don't. And they're flipping out, because it's pretty clear that the key to their case is in the unprotected parts of the recording. But if that's what Williams and Thicke copied, that's perfectly fine, because that part is in the public domain where everyone is allowed to copy it.

There is an unfortunate habit of many legacy copyright supporters to pretend that copyright gives them a lot more than it really does. And, all too often, judges fall for it. But not everything gets covered by copyright, and it's good to see a case where the judge is making it clear which parts are protectable and which are not.

Filed Under: blurred lines, composition, copyright, marvin gaye, pharrell williams, robin thicke, sound recording