Edwin F. McPherson - Los Angeles Daily Journal (September 9, 2016)
Last year, a jury handed down a $7.4 million verdict against songwriters Robin Thicke and Pharrell Williams in a much-watched copyright lawsuit over their hit “Blurred Lines.” The jury found that the song infringed the copyright of Marvin Gaye’s “Got to Give It Up.” The case will soon be reviewed by the 9th U.S. Circuit Court of Appeals. I recently prepared an amicus brief — ultimately on behalf of 212 songwriters, composers, musicians and producers — in an attempt to persuade the 9th Circuit that the judgment, which was later reduced to $5.3 million by a federal judge, was not only erroneously decided for the parties involved, but will impact the entire music industry if not reversed. In my quest to put together a large and influential group of artists, I did not speak to one person who said that he or she agreed with the verdict in the case, or thought that it was good for the industry. On the contrary, they uniformly expressed their unmitigated outrage at the outcome of the trial, and how such a case had the potential of completely stifling musical creativity.
If this case stands, the 9th Circuit effectively will have removed the line between permissible inspiration and unlawful copying — so much so that songwriters will have no idea what to do: Are we allowed to use a cowbell? Are we allowed to use a particular chord? Are we allowed to use a particular note (there are only 12 to choose from)? Are we allowed to use a particular lyrical phrase? Doesn’t melody matter anymore? These questions would be answered very differently pre-“Blurred Lines” than they would be answered now. In fact, it is not clear now, after the decision, that these questions can be answered at all.
This case is troublesome on many levels. During the trial, the Gayes’ counsel played interview after interview of Robin Thicke and Pharrell Williams, in which they indicated that “Blurred Lines” was essentially an homage to “Got to Give It Up.” A persuasive argument could be made that such interviews had no relevance whatsoever (or at least that whatever probative value they had was far outweighed by the prejudice), and should never been seen by the jury. Instead, the judge not only allowed the interviews into evidence, he allowed the Gayes to make them the focal point of their case.
Because “Got to Give It Up” was created under the 1909 Copyright Act, the judge initially “did the right thing” by limiting the Gayes to the sheet music that was originally deposited with the U.S. Copyright Office, and by refusing to allow the jury to hear the “Got to Give It Up” sound recording. I sat in the courtroom for much of the trial, and I heard “Blurred Lines” compared to the sheet music of “Got to Give It Up,” played instrumentally. Nobody in their right mind could believe that these songs, as they were played in court, were similar in any way, let alone substantially similar.
However, perhaps out of remorse for so limiting the Gayes’ case, the judge appeared to “hedge his bet” by allowing bits and pieces of the sound recording to enter the jury’s consciousness via the tortured testimony of the Gayes’ $350,000 musicologist. She testified that the bass part from the sound recording (not in the deposit copy), the keyboard part from the sound recording (not in the deposit copy), and other parts from the sound recording were implied by the sheet music or were a reasonable interpretation thereof.
To a lay person, untrained in musical notation or theory, this might sound a bit odd. To anyone who has even a modicum of a background in music, this testimony is absurd. One could argue that any music that is in the same key could be implied by the sheet music, or is a reasonable interpretation of that music. The law of copyright does not account for implied music or reasonable interpretations of music; it deals with actual music that is copied from other actual music.
The Gayes’ experts were allowed to testify that the supposed “signature phrase” of “Blurred Lines” had 12 notes, five of which are the same pitches as the supposed “signature phrase” of “Got to Give It Up.” They were also allowed to testify that there were three notes in common in a 25-note bass part in “Blurred Lines” and a 21-note bass introduction in the “Got to Give It Up” deposit copy. In the film world, this would be the equivalent of claiming that, in the first scene of the first script, there was a man in a white shirt smoking a cigarette, and in the third scene of the second script, there was a woman in a white dress holding an ashtray — absolutely preposterous; nevertheless, the Gayes survived summary judgment.
Yet, the court disallowed evidence that at least two of the musicologists that the Gayes hired for this case had found no infringement whatsoever (but were conflicted from being used by Pharrell, et al.).
The court also disallowed evidence that EMI, Marvin Gaye’s publisher, whose responsibility it was to police the musical world for infringements of Gaye’s music and to sue infringers, refused to commence litigation in this case. EMI certainly did its due diligence. It hired an expert musicologist who, like some of the Gayes’ musicologists, found absolutely no infringement. In fact, EMI actually consulted an attorney, who advised the company that commencing litigation over the song might very well violate Rule 11. Ultimately, when EMI chose not to sue, the Gayes sued EMI — for failing to sue!
One might ask, perhaps rhetorically, in light of this decision: How could a songwriter, who is not in the business of searching for and suing copyright infringers, who does not have extensive training as a musicologist, and who does not have a license to practice law, possibly determine whether his or her own song constitutes an infringement of some other song?
We have 212 influential songwriters, composers, musicians and producers (and more that are contacting me as we speak) who easily could have stayed silent, and simply hoped that a case like this would not happen to them. Instead, they chose to speak out, not simply in favor of Pharrell et al., who can arguably afford this case, but in favor of the next songwriter that comes along, who cannot risk the financial devastation that such a case is certain to inflict, who simply decides not to write a song.
Read the Amicus Brief Here