Hear, Read This:
In Pharrell Williams v. Bridgeport Music, a jury was asked to determine whether the 2013 song “Blurred Lines” infringed on the copyright of Marvin Gaye’s 1977 hit song, “Got to Give It Up.”1 The commercially released recordings of these two songs, however, were never played during the trial.2 Instead the jury was limited to comparisons of sheet music and expert testimony.3 Judge John A. Kronstadt excluded the commercial recordings from the trial because at the time Gaye received a copyright for “Got to Give It Up,” copyrights could only be sought for sheet music, not recordings.4 Gaye recorded the song in 1976, and because the Copyright Act of 1976 (“Act”) did not take effect until 1978, there was a loophole where he only owned rights to the sheet music that was submitted, not the recordings.5
Prior to the Act, federal law did not protect sound recordings; instead, state law determined levels of protection.6 If a state failed to grant copyrights for recordings, a musician could record copyrighted sheet music written by another musician and request a copyright for the recording. If the original composer then sued, the jury would be expected to look at the sheet music and compare it to the recording. And unless the jury members can all sight-read music, the attorneys have to hire performers and musicologists to come play and interpret the sheet music. In Williams, three musicologists testified on points of similarity between the songs. Two found substantial similarities, and the third disagreed with them.7 If the experts cannot agree on an interpretation of the sheet music, how is a jury going to come out with a fair result without even listening to the songs?
The commercial recording of “Got to Give It Up” is the same today as when it was released in 1977. Had artists in the 1970’s been allowed to copyright recordings, we would likely have a copyright of Gaye’s recording. There is little benefit in following this outdated copyright procedure. It makes comparisons between compositions unnecessarily difficult.
From a piece of sheet music you can observe the lyrics, melody, chord progression, rhythm, tempo, and key signature. And to a musician, this may be enough information to make a valid comparison and determine whether one song bears a “striking similarity” to another. But the rest of us need to hear it.
Fortunately, or unfortunately, very few music copyright suits make it to trial and even less make it all the way to a jury verdict. Therefore, there is little practical guidance on the best methods of comparison. Still, it seems intuitive that a jury can reach a more accurate and fair decision if it is allowed to compare the commercially released recordings, rather than comparing a recording to sheet music it cannot read.
Williams v. Bridgeport Music, Inc., No. LA CV13-06004 JAK, 2014 WL 7877773, at *6 (C.D. Cal. Oct. 30, 2014).↩
JURY INSTRUCTIONS at 37, Williams v. Bridgeport Music, Inc. (C.D. Cal. Mar. 10, 2015).↩
See supra note 1, at 7 (noting that the sheet music defines the scope of Gaye’s copyright because under the 1909 copyright Act a sound recording is not a publication).↩
Supra note 1, at 3-4.↩