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Blurring the lines of music infringement law

|Written By Jeff Young
Blurring the lines of music infringement law

For many years now, I have enjoyed three simultaneous careers. I am a senior member of the bar of British Columbia, focusing on entertainment law; I am a member of the State Bar of California, regularly dealing with my colleagues in Hollywood; and I am a music producer and composer with a current co-write on the radio and a cue on a currently airing TV show.

Very rarely does a legal case affect me in all three of my careers at once. The recent music infringement lawsuit between Marvin Gaye’s estate and Robin Thicke and Pharrell Williams over the songs Got to Give It Up (by Gaye) and Blurred Lines (by Thicke/Williams) does exactly this. Accordingly, I thought it would be interesting to present my commentary from all three of these perspectives.

From the American lawyer’s perspective

The general understanding among Americans practising music law is that a composition infringes on another when there are substantial similarities between the melodies of two songs. However, similarities in chord progressions and general rhythmic feel or genre — or as some might call it, the “groove”— does not constitute infringement.

In comparing Blurred Lines and Got to Give It Up, there is clear evidence Thicke and Williams meticulously copied the groove of Got to Give It Up. There are also some similarities in the bass line of the two songs, but those similarities do not seem substantial.

On a pure legal analysis, it would not seem like this was a case of infringement. However, the case went to a jury that decided in favour of infringement. No reasons are delivered and technically, no legal precedent is set as juries only decide questions of fact — although Thicke’s apparent bad attitude and demeanor in court may have made a difference. Also, the public has not seen the musicologist reports submitted into evidence.

What remains, however, is a message to any disgruntled music creator that if you take an infringement case to a jury, you may still win if you can convince them there was some form of copying, regardless of what aspects were copied and what the legal precedents say to the contrary.

What does the American music lawyer say to clients? Previously, it would be that you can copy a feel, groove, or genre, but not melody lines, hooks (or lyrics, if any). While the law hasn’t technically changed, the advice now is despite the law, any disgruntled music creator can still file a lawsuit, choose a jury trial, and convince the jury that there is infringement anyways — particularly if that client isn’t liked by the jury.

This kind of uncertainty is scary. Really scary.

From the Canadian lawyer’s perspective

Canadian music lawyers will likely never face a case like this one. Canadian music infringement cases are not decided by juries. They will be decided by judges who must provide reasons that are appealable. Moreover, an American trial jury decision with no reasons provided has little legal weight as precedent in Canada.

So as a Canadian music lawyer, if a client asks me how to avoid infringement, I would still advise that you can copy a feel, groove, or genre, but avoid copying melody lines (and lyrics, if applicable). You are likely going to avoid a lawsuit because we are all influenced by the feel, groove, and genre of the music we listen to and like the most.

However, most clients who come to me in Canada don’t just want a Canadian hit. Their dream is to have a hit in America on American radio. Therefore, it would not make sense for Canadian lawyers to completely ignore the Blurred Lines decision. In other words, while this decision has no formal effect on Canadian law, it will likely have some impact on Canadian music creators, especially those whose creative works cross the border. It would be unwise for a Canadian entertainment lawyer to not point that out.

From the producer’s and composer’s perspective

In the film industry, scripts are reviewed, potential infringements are identified, and the resulting clearance reports get sent to entertainment lawyers to review and to render opinions as to whether changes to the scripts are needed. This is all part of an almost mandatory “errors and omissions” process. Basically, the lawyers have to tell the filmmakers what is or is not allowed on the screen.

This “clearance” process also happens, in a lesser degree, with books. Literary publishers often retain lawyers to engage in a “libel read” of a book to identify possible legal risks before the book is released. It allows the risky portions to be edited out.

Will we now need “clearance reports” for music releases? If so, will they be done by musicologists who will be asked to identify potentially infringing phrases or “hooks,” and then submit those findings to lawyers, who will then render opinions on what can be left in and what has to go.

I’m not sure I would ever like this — even if I’m the lawyer clearing my own work!

As a composer, I am often asked by film directors to create “sound-alikes,” especially when the film is independently made and there is no budget to license a major hit song. A “sound-alike” is a music cue that copies a feel, groove, or genre but does not copy melody lines (or lyrics, if applicable) in order to avoid a lawsuit. Now, in view of the Blurred Lines case, this approach may not work anymore.

In conclusion

The Blurred Lines decision introduces significant uncertainty into music infringement laws. This uncertainty is aggravated by the fact juries are not required to render reasons for their decisions.

It is my understanding that Thicke and Williams have filed an appeal. I sincerely hope it will succeed, at least in part and specifically from the point of getting clarity on the legal principles involved.

I am much more concerned about that than which side winds up with the $7 million. I just want the lines of music infringement law to be less blurred!

Jeff Young is a lawyer and trademark agent with business and entertainment law firm Altman & Co. in Vancouver. He can be reached at jy@arenaltman.com.

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