The Blurring of Music Copyright?

Last month I heard an excerpt from the Slate podcast Culture Gabfest presented as part of CBC’s Podcast Playlist. The excerpt was from the Culture Gabfest March podcast and the “gabbers,” along with “pop-chart columnist” Chris Molanphy, were discussing the “Blurred Lines” court case. It was something Molanphy said during the conversation that has been nagging at me ever since:

“… if something recaptures the atmosphere, or the vibe, or the feel of a record without actually duplicating its melody, its tempo, its syncopation, certainly its lyrics … that is now litigable, that’s kind of unprecedented.”

Indeed.

You may remember the case: Marvin Gaye’s heirs sued Robin Thicke and Pharrell Williams alleging they copied Gaye’s 1977 song “Got to Give It Up.” The Culture Gabfest podcast offers up excerpts of these two songs so you can listen to them side-by-side; so if you’re not familiar with the tunes, have a quick listen.

To my ear, there is certainly a similar sounding vibe, no question. But copyright infringement? I don’t know about that. Larry Iser, an intellectual property attorney who has represented numerous musicians in copyright cases, weighs in with this:

“Unfortunately, today’s jury verdict has blurred the lines between protectable elements of a musical composition and the unprotectable musical style or groove exemplified by Marvin Gaye … Although Gaye was the Prince of Soul, he didn’t own a copyright to the genre, and Thicke and Williams’ homage to the feel of Marvin Gaye is not infringing.”

As reported in Billboard in July U.S. District Judge John Kronstadt rejected arguments over expert witness testimony and jury instructions and denied a bid for a new trial. The Guardian reported also reported in July that the ruling will be appealed. And no wonder. As Ed Reinbergs, a Toronto entertainment lawyer, notes,

“a decision made by a judge in the potential appeal could expand the definition of copyright to include ‘style’ or ‘feel’ — what the lawyers of Thicke and Williams claim is all that is similar between the two songs.”

And here’s something really interesting about this case. Unlike our ability to listen to these two recordings in question side-by-side the jury didn’t have that opportunity to do that during the trial. Reinbergs again:

“Jurors were never actually able to listen to the recordings of both songs because Gaye’s family only owned the sheet music, which means they were only able to use that (and a stripped-down rendition of the song based on the sheet music) to make their case of copyright infringement.”

So that’s weird. And leaves me and Molanphy wondering “how exactly did this jury only listen to recreations of this song or hear musicologists analyse it and then come to the conclusion that these songs are identical?”

There’s no question that there are similarities between the songs, but does inspiration equal copyright infringement? Can you copyright a musical style? If you’re listening to a song and it makes you think of another song is that somehow copyright infringement? Aren’t all of these things the very definition of “pop music”?

Like Howard King, one of the attorneys representing Williams and Thicke, I look forward with anticipation to the results of this appeal. “The songs are still different and we look forward to complete vindication on appeal.”