Un-Blurring the Lines of Copyright Infringement
In 2015, the music industry was rocked by the “Blurred Lines” copyright infringement case.[1] In that case, later affirmed by the Ninth Circuit, the District Court held that the single “Blurred Lines” by Robin Thicke, Pharrell Williams, and T.I. had unlawfully copied “Got To Give it Up” by Marvin Gaye.[2]
In lieu of direct evidence of copying, the court applied a two-part test to determine whether the defendants had “‘access’ to the plaintiff’s work” and whether the two works are “substantially similar.”[3] For addressing the element of substantial similarity, the court used both intrinsic and extrinsic analyses.[4] The extrinsic test is objective and asks the court to consider whether the works are substantially similar as a matter of law.[5] In practice, this inquiry is extremely technical, allowing parties to introduce expert testimony to breakdown the elements of the work.[6] The intrinsic test is a subjective test and a question of fact for the fact finder.[7]
In this case, the jury was asked whether “an ordinary, reasonable listener would conclude that the total concept and feel of the Gaye Parties’ work and the Thicke Parties’ work are substantially similar.”[8] When a jury question hangs on the vibe or “feel” of a work of music, that can be a dangerous place for most artists to find themselves. Often, the desire to recreate the feeling of an inspirational work is where many musicians begin their writing process.[9] As has long been said “good artists copy, great artists steal.” So how do artists protect themselves from infringing on a feeling?
Since the “Blurred Lines” ruling, the music industry has had to adapt, but this adaptation has come with a hefty price tag.[10] In order to protect themselves, artists have had to acquire large errors-and-omissions policies, hire musicologists to vet new songs, and even share royalties with artists to prevent future suits.[11] With artists afraid to confront the “Blurred Lines” precedent, many have opted to settle their copyright lawsuits.[12]
With large insurance policies and unfavorable rulings, many artists feel as though it’s a predatory plaintiff’s market.[13] For huge stars with massive labels behind them, the price tag might be less daunting, but for smaller labels, the numbers can be crushing.[14] Lukas Keller, founder of Milk and Honey, echoes many musicians when stating “[w]e all feel like the system has failed us.”[15]
However, in the past few months the music industry has seen a few wins—hopefully giving artists faith in the protections of the legal system.[16] Between Led Zeppelin’s Supreme Court victory and Katy Perry’s “Dark Horse” verdict being thrown out, the well may be drying up after all.[17]
Footnotes
