Unless they make a deal or the court puts it off, a jury trial will begin Feb. 10 to decide if the copyrights in Marvin Gaye’s “Got to Give it Up” and “After the Dance” were infringed by Pharrell Williams and Robin Thicke’s “Blurred Lines” and “After the Dance.” It will be a rare event if it happens. You can count on one hand the copyright infringement jury trials involving huge hits on both sides of the courtroom.
A lot has been written about the talk about the music, especially Thicke’s now repudiated public statements like “Pharrell and I were in the studio and I told him that one of my favorite songs of all time was Marvin Gaye’s ‘Got to Give it Up.’ I was like, ‘Damn, we should make something like that…” Judge John A. Kronstadt of the federal court in Los Angeles will decide if the jury gets to hear about all that. It is mostly a question under the rules of evidence.
I’m writing today about a more surprising issue under copyright law. Williams and Thicke’s lawyers want to prevent the jury from hearing the hit recordings and mashups of the recordings made by experts to compare how the songs sound side by side. They want the case limited to the sheet music for the songs with experts telling the jurors about similarities and differences. Is that how you listen to music?
The argument stands on the 1972 to 1978 slice of the archeology of the Copyright Act when sound recordings received their first tentative protection. Unlike the Flo & Eddie case in the same court on pre-1972 recordings, the Marvin Gaye hits were copyrighted in 1976 and 1977. The California law Flo & Eddie are relying on applies to records first made before February 15, 1972.
The Marvin Gaye heirs are stuck with the Sound Recording Amendment to the Copyright Act which became effective on February 15, 1972. At long last recognizing sound recordings, the law only protected copyright owners against counterfeit recordings—unauthorized copies made from the original recording. In copyright lingo, owners only got one of the six exclusive rights given to all other copyright owners, the “reproduction” right.
The other 5 kinds of rights protected by the Copyright Act revision adopted in 1976 but not effective until 1978 were withheld, leaving copyright owners subject to the 1909 Copyright Act which did not recognize a sound recording as a copyrightable work. They got the worst of both worlds.
“Blurred Lines” and “After the Dance” are not counterfeits. The heirs say they are “derivative works” based on the original recordings. The right to prepare derivative works is one of the five exclusive rights not given to 1972-1978 sound recordings.
But the heirs own copyrights for the two musical works. Musical works are the notes and any accompanying words written on some kind of tangible medium. Sheet music.
The heirs argue the musical works were made up during the studio recording sessions and only later reduced to sheet music, so the recordings are the best evidence of what the sheet music tries to describe. They cite decisions under the 1909 Act where the trials included playing the sound recordings involved. Some courts even noting they couldn’t imagine any other way to convey the musical works to the jury. I can’t either.
If the court allows recordings to be played, the fallout will probably not make much news. If Marvin Gaye’s heirs are only allowed to argue their copyright infringement claims through experts talking about the sheet music, that probably will be news. Not like the reversal of Dez Bryant’s apparent 31-yard catch on the Packer’s 1-yard line, but news.