July 19, 2017 11:16AM

The Blurred Lines of Copyright Infringement

It’s been two years since the "Blurred Lines" verdict, but the daze has just begun. According to a BBC report last week, recording artists are now being instructed not to talk publicly about their musical influences for fear of exposure to copyright infringement claims.

"Blurred Lines" was a chart-topping 2013 pop song by Pharrell Williams, Robin Thicke, and Calvin "T.I." Harris. Marvin Gaye's family successfully claimed that the track infringed on Gaye's 1977 song, "Got To Give It Up,” winning $5.3 million in damages and 50 percent running royalties. The case is now on appeal at the Ninth Circuit.

If copyright law was focused on actual, you know, copying, this case would have never gone to the jury. The Gaye family holds the copyright to the sheet music, not the actual recording, so its claim should stand or fall based on the notes on the page. Which is to say, it should fall: the two songs are set in different keys and use different sets of chords (see good analyses here and here). Accordingly, "they sound similar" shouldn’t even be a relevant argument, much less a winning one.  

The Gaye family based its case on shared “elements” in both songs, as well as Pharrell Williams’ admissions that he was inspired by Gaye and that the song captured the “feel” of Gaye’s earlier tune. The trial court allowed the case to go to the jury and included an instruction that "substantial similarities" between elements of the two songs was evidence of infringement.

This way lies mayhem. If the liability standard set in this case were generally followed, the normal processes of musical creation—and artistic creation more generally—would be illegal. Artistic creation is inherently a social endeavor, each new work part of an ongoing conversation with other artists and the audience. Artists naturally pick up on what has been said previously in that conversation, borrowing elements from the past and rearranging them and adding to them to create something new. The existence of distinctive styles, genres, and movements in the arts is possible precisely because of the ubiquity of artists’ drawing on what has come before.

This unfortunate case demonstrates how copyright’s expansive coverage of “derivative works” is antithetical to the stated purposes of the law. Copyright is supposed to incentivize artistic expression, but now we have come to the point where artists are being urged to muzzle themselves to keep themselves away from the law’s reach. A decision by the Ninth Circuit to toss out the verdict would be welcome news—but only a small, first step toward reining in a law run amok.

This post was coauthored with Rachel Chiu.