Lessons from the Copyright Infringement Verdict Against Robin Thicke and Pharrell Williams

A verdict was reached earlier this week in the copyright infringement case between Robin Thicke and Pharrell Williams and the children of Marvin Gaye, finding that the 2013 song "Blurred Lines" infringed on the copyright in Marvin Gaye's 1977 song "Got to Give it Up."  Tech Times reported that Gaye's children have been awarded $4 million in actual damages and $3.4 million in profits, and also provided links to postings of both songs on YouTube.com.  According to The New York Times, the decision is one of the largest damage awards in a music copyright case, recalling the 1994 jury verdict for $5.4 million against Michael Bolton and Sony for infringing a 1960s song by the Isley Brothers.

If you have followed the commentary this week in the news on this case, much has been made of the detrimental precedent that this ruling is anticipated to set for the music industry.  The fear articulated is that this will discourage artists in the future from creating music that recalls earlier musical eras.  Joe Caramanica editorialized for The New York Times that the jury instructions in this case ordering the jury to base its decision on the copyrighted sheet music " reflects how inadequate copyright law is when it comes to contemporary songwriting and production practices."  Hardeep Phull opined for The New York Post that "So it’s decided. Marvin Gaye owns a certain type of “feel" and argued that" [the] vast majority of pop music is based on the same chords, played much the same way, and at a similar speed."  The online publication Quartz warned that "the true cost" will be when an "unknown musical genius tries to create a new song that evokes a particular era, and is sued into oblivion" due to the fact that the new song “kind of sounds the same” as a song that was previously written.

The commentary following this ruling is not unlike the commentary voiced after rulings in copyright infringement cases where technology rather than music was at the heart of the debate, and commentators have warned about how a particular decision would hurt innovation and stifle creativity.  The only distinction here is that we are dealing with music and not technology.

I would argue, however, there is a lesson to be learned in this case: when you are "lifting" the creative works of others, you should take the time and make the effort to procure a copyright license authorizing the planned use rather than attempting to circumvent the unlicensed use.  L.A Now reported that 'Blurred Lines' generated $5.6 million for Thicke, $5.2 million for Williams, and $5-6 million for the record company.  It seems to me that all three parties made quite enough off of the song in question to have been able to afford to pay copyright royalties on the infringing lines taken from the Marvin Gaye song.   So, the question I have: why not negotiate the license?  If they were truly 'evoking an era', doesn't that mean that they had some idea in advance of the music which had inspired them?

Now, if you were to assert that the copyright office database is not as search-friendly as the USPTO databases are, then I would have to agree with you that there are definitely short-comings with the Copyright Office that make searching for prior registered works more challenging than you would ideally like it to be. The copyright search functionality currently available is minimal at best.   However, I think that artists who are "inspired" by a particular genre or era of music should know enough about the genre or era that they are evoking to be able to identify potential infringement issues that need to be further researched, and that they--like all creators of creative works--should be held accountable when they use third party creative works without permission.  The bottom line is that works appropriated from other works are merely derivative works of the original creative work, and only the author of the original creative work has the right to authorize the creation of the derivative

But even if the Marvin Gaye song was never the original work from which the new song derived, it seems to me that the smart play here would have been to immediately negotiate a backdated  copyright license or settlement once Williams and Thicke were notified of the potential infringement.  While a license or settlement would have cut into their profit margins, it is unlikely that it would have been for such a high amount as the damage award, and that the attorneys fees incurred would have been much lower.  So, why make the decision not to pursue this strategy?

It seems clear to me that the take-away lesson from this case is that when creative works are similar enough to existing works to potentially be deemed to be infringing, creators should pursue copyright license agreements with the owners of the original works.  The procurement of a copyright license can save creators a lot of headaches--and potentially money--down the road.  I would argue that the cost should be viewed--not as an unnecessary expense to be avoided--but as a form of insurance against potential legal claims from the original work holder.  Commercialization of older works through licensing can easily  be a win-win for all sides of a negotiation.   The fact that this matter was played out in a courtroom rather than over a negotiating table was a real oversight by Williams and Thicke.

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