A split decision yesterday by the Ninth Circuit federal appeals court affirmed $5+ million in damages awarded against famous artists Pharrell Williams and Robin Thicke in favor of the heirs of Marvin Gaye. A 2015 copyright trial asked a jury if Gaye’s number one hit “Got To Give It Up” was infringed by the 2013 number one hit “Blurred Lines.” They said it did and an appeals panel majority affirmed their decision. The defendants may ask the entire appeals court for a second look.
For now, this high profile decision reaffirms traditional principles of copyright law and how the courts should handle infringement cases. These include [a] appeals courts are “reluctant to reverse jury verdicts in music cases,” [b] the infringement test is “substantial similarity” not exact copying, [c] substantial similarity is shown partly by expert dissection of the musical elements of the work and partly by the subjective reaction of ordinary people to its concept and feel, and [d] appeals courts give “great deference” to jury awards of damages,
Not allowed to hear Gaye’s hit record because of the copyright laws in effect when it was made, the jury infringement verdict came after warring experts’ interpretations of Gaye’s sheet music and the “Blurred Lines” creators’ testimony candidly admitting they were inspired by the older hit.
As technology made copying sound recordings almost effortless, and musical instrument virtuosity often was replaced by software to create sound and manipulate recordings, songs made from scratch became rarer. These changes and internet distribution of music have bred many opponents of US copyright law who see it as out of sync with reality. While new music has always rested on what came before, using other people’s music now seems normal if not an absolute right to many creative people.
The decision will be grist for copyright critics. More warnings have issued in the last 24 hours that creativity will be chilled because “Blurred Lines” did not literally copy “Got To Give It Up” and only captured its musical style or groove. One warning is from yesterday’s dissenting judge.
While mostly on federal procedure, the majority decision pushes back against the critics head-on. It shows how traditional copyright principles are more than adequate to handle infringement claims. And coming from the federal appeals court with the highest number of entertainment industry cases, the decision is a strong signal that it will take legislation to make the copyright laws require more literal copying to prove infringement.