By: Caitlin Holland
We have all heard the anecdote that all songs include the same three notes. Musicians often cite the lates and greats as “inspiration” for the latest pop song making the radio rounds. But how far can “inspiration” go before it is considered a crime? How much of a song is copied for it to be considered substantially similar rather than just in the same genre? Where do we draw the line between inspiration and stealing?
In the world of Copyright litigation, the line between inspiration and copying is becoming more and more blurred thanks to a recent decision that is opening the proverbial floodgates of litigation. Famous recording artists who have been parties to copyright infringement claims this year include Robin Thicke and Pharrell[1], Ed Sheeran[2], Sam Smith[3], Hans Zimmer[4], and Led Zeppelin[5].
The litigation of the “Blurred Lines” case between the family of Marvin Gaye, copyright owners of Gaye’s song “Got to Give it Up,” and Robin Thicke, Pharrell and T.I. is probably the most noteworthy. In the highly publicized decision set down last year in California, the damage award set a record high in a copyright case at $7.4 million, reduced to $5.3 million. Most notably, the substantial similarity that lead the judge to rule that there was infringement of Gaye’s copyright was the extrinsic and intrinsic similarities. The test for extrinsic similarities employs expert testimony to determine whether the works share similar expressions. Intrinsic similarity is shown if an ordinary, reasonable listener would conclude that the total concept and feel of the works are substantially similar.[6] In this case the plaintiff’s expert brought forth examples of material appropriated by the “Blurred Lines” creators cited as “the pulse that runs through the song.”[7] The jury made the decision that the “feel” of the two works bore sufficient similarity to conclude that there had been an infringement. [8]
Last month, 200 musicians filed a brief with the Ninth Circuit Court of Appeals expressing their concern about the ruling in the “Blurred Lines” case.[9] The musicians cite a possible chilling effect saying that the ruling could have an “adverse impact on their own creativity, on the creativity of future artists, and on the music industry in general, if the judgment is allowed to stand.”[10] The brief submitted by the artists states that reducing the similarities of the two works to simply a “feel” or “vibe” reduces the copyright to an idea, which is not a copyrightable medium of expression.[11] Rather than on the substantial similarity of the notes, words, and arrangement, the song was found in violation of Marvin Gaye’s copyright based on the stylistic and atmospheric influence.
The verdict in this case has expanded the scope of copyright protection to abstract ideas and feelings, contrary to the very language of The 1976 Copyright Act. If this appeal fails, the 9th Circuit may effectuate an unwelcome change to the music industry as we know it.
[1] Williams v. Bridgeport Music, Inc., 2015 U.S. Dist. LEXIS 97262 (9th Cir. 2015).
[2]Musician Ed Sheeran Faces Copyright Lawsuit Over ‘Thinking Out Loud,’ Reuters, Aug. 10, 2016, http://www.reuters.com/article/us-music-edsheeran-lawsuit-idUSKCN10L04X ; Piya Shinha-Roy, Ed Sheeran Faces $20 Million Copyright Lawsuit over ‘Photograph’, Rueters, June 9, 2016, http://www.reuters.com/article/us-music-edsheeran-lawsuit-idUSKCN0YU2R4
[3] Daniel Kreps, Sam Smith on Petty Settlement: ‘Similarities’ But ‘Complete Coincidence,’ Rolling Stone, Jan. 26, 2016,http://www.rollingstone.com/music/news/sam-smith–tom-petty-settlement-20150126
[4]Hans Zimmer Wins Copyright Lawsuit & An Apology, Billboard, Aug. 25, 2016, http://www.billboard.com/articles/news/7487729/hans-zimmer-wins-copyright-lawsuit-apology
[5] Skidmore v. Led Zeppelin, 2016 U.S. Dist. LEXIS 51006 (9th Cir. 2016).
[6] Williams, supra at 52.
[7] Id. at 68.
[8] Id.
[9] More Than 200 Musicians Support ‘Blurred Lines’ Appeal – The Associate Press – http://www.nytimes.com/aponline/2016/08/31/us/ap-us-blurred-lines-song-dispute.html
[10] Brief of 212 Songwriters, Musicians, and Producers as Amici Curiae Supporting Appellants, Pharrell Williams, et al. v. Frankie Christian Gaye, et al., 2015 U.S. Dist. LEXIS 97262 (2015)(No. 15-56880), available at https://pacer-documents.s3.amazonaws.com/3/15-56880/009028333811.pdf.
[11] 17 U.S.C. 106 (1976).