Blurred Lines in More Ways Than One – Part I

In what may be the most aptly named copyright case in recent history, “Blurred Lines” (properly Williams v. Gaye) is generally viewed as a mistake that many composers and songwriters fear will have a chilling effect on the craft of music-making. The headline complaint is that the outcome thus far asserts copyright protection for musical style, and, if true, this would certainly be harmful to the promotion of expression.

As attorney and law professor Rick Sanders opines in his blog, this case has such an unusual fact pattern—he calls it a perfect storm—that it may not be quite the precedent many fear. This opens up a much broader discussion about the legal processes for finding infringement, which I’ll do my best to summarize Part II.

To recap, in 2015, a jury awarded the Marvin Gaye estate $5.3 million in damages plus a 50% share in all future sales of the Robin Thicke/Pharrell Williams song “Blurred Lines,” finding that it infringed Gaye’s 1977 hit “Got to Give it Up.” Last month, the Ninth Circuit Court of Appeals denied a retrial, and counsel for Williams and Thicke last week filed for an en banc rehearing. Attorney Kathleen M. Sullivan notes in her brief that California’s Ninth Circuit is the “nerve center of the Nation’s creative industries,” thus its rulings on copyright are of particular significance.

In her appeal, Sullivan leans substantially on the district court’s failure to conduct proper analysis before “Blurred Lines” was presented to a jury. She writes …

“… the district court’s failure to make an objective comparison of the works before proceeding to  jury trial resulted in a trial where the jury was subjected to a mystifying haze of musicological obfuscation in which the Gayes’ expert found “implied” musical elements that were not notated in the lead sheet and ‘shift[ed] and invert[ed] the pitches’ in the songs in ‘a feat of musical gymnastics well beyond the skill of most listeners.’”

In part, Sullivan is quoting the strongly-worded dissent in the Ninth Circuit’s current holding, written by Judge Nguyen, which argued that the two songs are “objectively dissimilar.” In essence, the dissenting view argues that the district court should have been able to reach this conclusion as a matter of law and, thus, the case would never have gone to trial. Hence, Sullivan’s most quotable statement expressing the nature of concern among songwriters and composers …

“If a copyright holder can now get to a jury simply by proffering an expert to opine that a song’s elements are substantially similar to an accused song, without any objective comparison by the court, no musical work is safe from the prospect of copyright liability.”

Further, Sullivan asserts that the majority in the Ninth Circuit holding erred by applying a “broad” standard of protection to musical compositions. She states that this is both a contradiction of precedent and an error of law for two reasons: first, that no particular medium should be singled out for “broad” protection; and second, that the diversity of musical compositions may depend more than any other on “thin” copyright protection. “If anything, music is composed from indispensable, commonplace elements more often than other genres [she means categories] given that there are only 12 notes in the Western musical scale,” Sullivan writes.

That argument gets to the crux of the challenge in a case like Williams, especially because it went all the way to trial by jury, which is actually quite rare in copyright cases. In general, one does not need professional experience in law or music to know that all songwriters are working with the same set of common elements—notes, chords, time signatures, etc.—and that within any given musical genre, one work can sound a lot like a precedent work without the second actually copying the first.

Copyright is supposed to protect individual expressions but not ideas or facts; and in music, common elements, and even some standard arrangements of those elements, are generally viewed as ideas and facts (i.e. unprotectable). But when two musical works are quite similar, where does a court look for infringement; and even more unpredictably, how is a jury instructed to look for infringement?

As Rick Sanders states in his blog, what makes Williams most unusual was the fact that Robin Thicke so openly conceded that “Blurred Lines” was inspired by “Got to Give it Up.” This testimony feeds a doctrine known as the inverse-ratio rule, whereby the more one can prove the new artist had “access” to the precedent work, the less one must demonstrate similarity between the two works. More on this topic in the next post, but suffice to say that “access” is not generally easy to prove, and Thicke was an atypical witness by admitting that he was all but trying to mimic Marvin Gaye’s song. Add to this the evidence from the Gayes’ musicologist explaining the technical similarities between the two works, and the jury’s conclusion makes sense for us regular folks who can imagine being in their seats.

But for copyright attorneys and scholars, Williams v. Gaye actually touches several doctrinal nerves—namely that there is no uniform test for infringement; that the two main circuits (the Ninth and the Second) apply slightly different analyses; and that the process of testing for infringement in one medium, like literature, does not so easily apply to another medium, like music. All of this funnels into questions about what kind of evidence should be presented to a jury, or even whether it is rational—the Seventh Amendment notwithstanding—for juries to preside in copyright cases at all.

Based on the tone and rhetoric employed by the anti-copyright forces, I sense a bias that being pro-copyright is seen as equivalent to being pro-plaintiff in nearly all litigation. Whether that bias truly exists, I can say that I don’t personally know many copyright advocates who are pleased with the outcome in “Blurred Lines,” to say nothing of the composers and songwriters concerned that finding for the Gayes grants too broad a protection to elements that should be unprotectable.

Having said that, though, two scholars I admire greatly, Lateef Mtima and Sean O’Connor, take a very different view that the evidence presented in Williams is not only consistent with copyright law, but also represents an important reversal in a longstanding tradition of white musicians appropriating the musical styles of people of color. In an editorial for The Seattle Times, they write …

“While music copyright cases up to the mid-20th century often focused on catchy melodies, contemporary cases consider harmonic and rhythmic elements as well. The older view derived from a white, European — often ‘high brow’ — approach to music. This marginalized the influential harmonic and rhythmic innovations of artists of color from jazz on through rock and hip-hop. While black artists complained about these issues for decades, it is only when the tradition of white misappropriation of black musical innovation is threatened that the system comes under thunderous scrutiny.”

What Mtima and O’Connor are alluding to in a copyright context is the subjective aspect of testing for infringement; and this is where doctrine gets especially complicated, even without adding the emotional element of race to the narrative. Most copyright experts agree that infringement can occur beyond the scope of literal copying, and this generally translates into a doctrine of perception—i.e. how an ordinary listener, viewer, reader would perceive the allegedly infringing work. In theory, this is where a jury adds the element of justice into an otherwise subjective equation.

To Mtima and O’Connor’s point, in Williams, they see an important shift in understanding non-literal copying (i.e. Marvin Gaye’s style) and view this shift as resetting some balance in copyright protection for the contributions of people of color, which have unquestionably been commercialized by white artists. They state …

“The older focus on literal melodic copying systematically disfavored artists of color, Relying on this presumed exclusion of harmonic and rhythmic elements, record companies perennially promoted white artists from Elvis Presley to Iggy Azalea who could perform songs imitating artistic innovations of black artists.”

This is a fascinating line of inquiry from a historic, artistic, and social-justice perspective, though it may further muddy the waters, so to speak, in the broader debate as to how courts should test for infringement. Or perhaps it will provide a useful new context for settling some of these longstanding challenges. In a follow-up post, I’ll do my best to boil that debate down to a digestible narrative, but fair warning—it is a narrative with many blurry lines of its own.

© 2018, David Newhoff. All rights reserved.

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  • Two thirds of the writers were black, so why do Lateef Mtima and Sean O’Connor call out white appropriation?
    The bass parts, drum parts, melody….all different. Blurred Lines is not a copy of Got To Give It Up…This is a horrible verdict. I guess all the blues songwriters will be suing each other now for “stealing” blues chord progressions?

    • I tend to view this as a bad verdict as well, but I also try to present various points of view where that seems appropriate. The interesting element to me is the intersection between the black/white issue and the test for infringement. That doesn’t mean I would come to the same conclusion as Mtima and O’Connor.

    • I wasn’t aware of the race issue being brought up in the context of this case until now and – now that I am – I’m asking myself: “have people in the US finally gone off the deep end?”

      The blues artists are an interesting case study, because “white appropriation” is exactly what got many of them out of the “race records” ghetto and into the mainstream – and it took open-minded white kids from the UK to make it so (same goes for jazz, BTW). I see the blues rock movement of the late 60s doing a lot of work to break down the racial divides in the younger generation of the day – which is currently being dismantled, most enthusiastically by those who preach “anti-racism” and “diversity”.

      Here’s the thing: if we’re going to apply racial issues to infringement cases, what’s gonna happen is that the white folks are gonna keep their mouths shut about inspirations taken from black musicians. The crux of the “Blurred Lines” case is that Thicke – in what I presume was a touching display of naivete – was forthright about the fact that Marvin Gaye was the man, and made excellent music; something that Thicke/Williams tried to capture and continue in their own work. This could’ve been used to bring Gaye’s work to an audience that may have been unfamiliar with it and preserved it for the next generation.

      I’m frankly speechless when I see the idea that being open about drawing inspiration from people of the wrong skin colour is suddenly a Bad Thing. All the more so, given that the entire matter wouldn’t even come up in my local – and, IMO, infinitely more sensible – (Polish) copyright regime, where inspired works aren’t treated as derivative, as a matter of law.

      If not for Hanlon’s Razor, I’d seriously begin to suspect that the supposedly anti-racist portion of the US society were trying to purposefully stoke racial conflict.

      I need a drink…

      • Greetings, Faza. And thanks, as always, for commenting. Let me first say that I cannot provide any evidence that the U.S. has not gone off the deep end. I mean…really?

        But in context to this topic, my own view is that most contemporary complaints about “cultural appropriation” tend to be ahistorical and regressive. It is a foundation of Western democratic principles that we celebrate cross-cultural interaction, and traditionally artists–especially musicians–have been the vanguard of advancing this principle. I certainly fear that over-sensitivity to what some call “cultural appropriation” actually reverses social, cultural, and democratic progress by reinvigorating a desire for segregation. It’s a logic that ends with people labeling anyone in a mixed-raced marriage as “race traitors.”

        I referenced the work of Mtima and O’Connor for a few reasons: a) to report on a diversity of views; b) because I know them as thoughtful scholars; and c) because I believe they’re making a more nuanced point about copyright and the analysis for infringement–one that I recognize will be lost on most readers who, reasonably, do not spend much time delving into those arcane particulars. Their work asserts that the historic test for infringement has statistically disenfranchised artists of color. That may or may not be true, but it can be a worthwhile investigation for them to make. And as long as the opinions about the doctrine for infringement remain as diverse as they are–and they really are–it seems wrong not to at least acknowledge their perspective.

        Race is always tricky in this narrative. On the one hand, we want to advocate the democratic value of color-blindness and celebrate art that is multi-cultural, whether we know it’s roots or not. But this does not absolve us from the responsibility to acknowledge that policy and law can foster one set of rules for one group and a different set of rules for another. To your point about stoking conflict, it is absolutely true that simply looking for racism in policy where it might not exist can actually manufacture a new line for racial divide. I don’t have any solutions for that, so just let me know where to meet you for that drink!

      • A while back, I’d have said: London, but politics happened and they don’t like my kind there no more… Getting into the US is also a bit tricky and it’s hard to make a bar date when Immigration tells you “not in those shoes buddy!”

        I don’t suppose you’re planning a holiday in Central Europe, by any chance?

        On topic – and a more serious note – a sensible analysis of the infringement test would, in my mind, consider both the intended purpose of applying such a test and the real-life circumstances wherein such a test might be applied. As mentioned previously, Polish law explicitly acknowledges that prior works will serve as inspirations for the creation of new works and labels the results as non-derivative. It’s literally a one-sentence item of our Copyright Act that gets rid of the whole issue – and rightly so, in my opinion.

        Frankly, I’m not sure that most policy sets different rules for different classes of people. On the contrary, I’m increasingly finding that the drive to right historical wrongs has a tendency to create new lines of special privilege – ones that are baked into the system. I also know that dismantling such privileges will hurt, because people don’t like privileges being taken away.

        Which fundamentally brings us to the question of whether looking at historical issues does not, in fact, blind us to the actual problems we face today. For example, after two terms of Obama’s presidency I find it really hard to stomach the idea that systemic racism against black people is still prevalent to any great extent in the US today (especially if it’s argued by someone like Beyonce, who could buy out my white butt several times over). Instead, I find it more useful to look at the matter along more traditional class/community lines. If majority black communities are more likely to be troubled (which has knock on effects in the form of increased propensity towards crime/incarceration, as is evident), then I think it much more useful to look towards how we can fix such communities and this is something that can be done without any thought given to the race of their inhabitants (as is evident from the fact, that such problem communities exist even in racially homogenous societies, like Poland).

        To tie this in with the topic at hand: when trying to fix a problem one should first ask if it’s a problem that needs fixing (in Williams the problem, as I see it, is determining the status of inspired works with regards to being derivative of the inspiration) and secondly: what exactly do we need to do to fix it (here, I am of a mind that it’s best solved by addressing it on a legislative level). The more politics we introduce into the matter and the more we sin against Occam (by bringing up extraneous issues that have no bearing on the matter at hand – Williams would be exactly the same if it was about two white or two black artists… oh, wait, Williams is black), the further we depart from coming up with a solution that will stand the test of time when the politics of the day change.

        In short, if Mtima and O’Connor are indeed thoughtful scholars, I think it’s our responsibility – as thoughtful and well-meaning readers – to say: “okay, now you’re off playing with the fairies. This line of analysis is not only superfluous, but actually actively harmful to the exact issues you care about.”

      • Thanks, Faza. Unfortunately, no plans to be in any part of Europe anytime soon, but if you’re ever in New York, in any kind of shoes, I’ll name the bar.

        With regard to big-picture issues, I generally agree with you–or at least with your note of caution when one sets out to fix what is not broken. As for the state of race relations in the U.S., it’s very hard to pin down. Socially and culturally, I think we’re generally in a better place than we were 30 years ago. Systemically, though, I would say our report card is inconsistent at best and failing at worst. But this is not the forum for issues like housing, policing, private prisons, education, and every other topic that would come up in that discussion.

        On the subject of copyright, I’ve now read Mtima & O’Connor’s amicus brief and have to admit it’s a compelling argument, even if race (or social status) were not a factor. It really boils down to the consideration of lead sheets vs. sound recordings, which strikes me as a worthy point of discussion on its own, but which may have a social justice twist. I’m actually going to write a post about the brief, so I won’t say too much here.

        Meanwhile, I’ll raise a glass toward Poland, as it’s the best I can do for now.

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