Can 'Fair Use' Clear Up Music's Blurred Lines on Copyright? (Op-Ed)

 Larry Busacca/Getty Images for NARAS
Pharrell Williams, Robin Thicke and T.I. perform onstage during the 56th annual Grammy Awards Pre-Grammy Gala and Salute to Industry Icons honoring Lucian Grainge at The Beverly Hilton on Jan. 25, 2014 in Beverly Hills, Calif.

What if Pharrell and Robin Thicke had instead argued that they borrowed a small part of the '70s groove from Marvin Gaye's "Got to Give It Up," but gave it new meaning, a different character and new expression?

Musicians are still trying to figure out the fallout from the court decision against Pharrell Williams and Robin Thicke, finding them liable for copyright infringement based on similarities between their hit song "Blurred Lines" and the late Marvin Gaye's hit "Got to Give It Up." The case pitted two songs of great popularity against each other. Both songs topped the Billboard Hot 100 chart, "Got to Give It Up" for a week in 1977 and "Blurred Lines" for 12 weeks in 2013. Yet the jury's finding that Pharrell and Thicke infringed Gaye's copyright in "Got to Give It Up" -- a finding that was upheld this year in a 2-1 decision by the Ninth Circuit Court of Appeals -- puts Pharrell and Thicke's song under a cloud of illegality. It's no small matter. The musicians must pay a damage award to Gaye's estate totaling 50 percent of the past and future earnings derived from "Blurred Lines." In 2015, Pharrell and Thicke owed over $3 million, representing half the revenues earned from their mega-hit song. And their obligation to pay 50 percent royalties to Gaye's estate will run for the remainder of the copyright on Gaye's song -- 95 years after Gaye's song was first copyrighted in 1977, meaning until Dec. 31, 2072! 

Some musicians decried the decision as a threat to creativity. As a brief submitted by over 200 musicians put it, "The verdict in this case threatens to punish songwriters for creating new music that is inspired by prior works." [In full disclosure, I signed an amicus curiae brief in support of the jury’s decision submitted by musicians, composers, and law, music and business professors; part of the brief explained how fair use can apply to transformative uses of musical works.] Musicians routinely admit that borrowing is common in, and perhaps essential to, music composition. Musicologists have even developed an entire field of study to document and study the pervasive phenomenon of borrowing in music, classical to contemporary, among even the most successful and influential artists. Borrowing in music composition should not be surprising, given the limited number of musical notes and even more limited number of harmonious combinations of notes that exist, not to mention the growing body of scientific research showing universal patterns in music among humans. However, after the decision against Pharrell and Thicke, songwriters fear that copyrights can be asserted against them even if there's only slight similarity between their song and another song. 

Our copyright system has a solution to this problem: fair use. It's a general exception to copyright that enables people to make a variety of uses of copyrighted works without permission from the copyright owner. Granted, it's not a perfect solution, given that fair use must be applied on a case-by-case basis and does not yield as clear guidance as people may desire. Yet no other doctrine in copyright law provides creators the same kind of safety valve that allows them to borrow from prior works to create a new work, a work that "adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message." In Campbell v. Acuff-Rose Music, a 1994 case involving 2 Live Crew's parody rap version of Roy Orbison's "Oh, Pretty Woman," the Supreme Court called these new works, "transformative works." Such works should be encouraged, the Court said, because they serve the overall goal of our copyright system in promoting progress in the arts with the creation of new expression. 

Unfortunately, fair use has been all but absent in music cases. Campbell has broadly influenced fair use cases outside of music, but its influence in music has reached only cases involving parodies. I conducted a study of all copyright decisions involving two competing musical works from 1978 to January 2018. As detailed in an article on "Fair Use Avoidance in Music Cases" just published by the Boston College Law Review, my study shows that, despite the relatively large number of music cases during this 40-year period, no court decision has ever discussed, much less recognized, fair use in a case involving two competing musical works (excluding parody songs). A 2017 decision that recognizes fair use in Drake's sampling of jazz artist Jimmy Smith's spoken narration comes close, but Smith's narration contained no music so is unlikely to constitute a musical work. Even including Drake's case, no decision has ever recognized fair use in the borrowing of musical elements (excluding quotations of words or lyrics) to create a non-parody song. 

The lack of a fair use precedent in non-parody music cases doesn't mean that fair use doesn't exist in music. All that it means is that litigants simply have not pursued the defense to a judgment, or that courts have ruled on different grounds. So far, this strategy has sufficed. As detailed in my study, in over 90 percent of the music cases that reached a verdict, the defendants or musicians accused of copyright infringement have prevailed on other grounds. Fair use hasn't been needed in most music cases, at least not for defendants to prevail.

Yet, sometimes, the defendants in music cases lose, as Pharrell and Thicke did. Even then, defendants typically do not assert fair use. Such fair use avoidance is becoming increasingly problematic. It perpetuates the mistaken impression that it is taboo for them to borrow even one iota from another song, or at least to admit to doing so in the context of a copyright lawsuit. Outside of legal disputes, though, musicians routinely admit to borrowing. Pharrell and Thicke displayed this ambivalence: Thicke boasted to GQ of wanting to make a song similar to "Got to Give It Up" -- "something with that groove" -- but later, in their lawsuit with Gaye's estate, the pair backtracked and disclaimed any borrowing of Gaye's song.

I'm not sure which account best explains what happened. But the jury believed Pharrell and Thicke copied from "Got to Give It Up," and hence the verdict. What would have happened if Pharrell and Thicke invoked fair use and told the jury that they borrowed a small part of the '70s groove from Gaye's song, but gave it new meaning, a different character and new expression in a modern pop, dance song fitting today's tastes? Surely, no one would mistake "Blurred Lines" for a song from the '70s -- it has a much different character. Of course, the jury might have rejected that defense as well, but fair use fits better with Thicke's original explanation in GQ that the duo intended to borrow the groove of "Got to Give It Up" in creating their new song. Moreover, having the jury or court balance the factors of fair use provides a more nuanced and realistic assessment of the competing interests at stake than the simple test of infringement does.  

The music world needs a clear decision applying fair use to a non-parody musical work. Without it, copyright lawsuits will only increase. In 2014, the Supreme Court held that copyright law does not recognize the defense of laches (used to bar suits in which the plaintiff waited too long to bring the suit), thereby giving a green light to lawsuits involving old musical works, such as in the suit by Spirit against Led Zeppelin's 1971 classic song "Stairway to Heaven." As long as a song is still under copyright, it can be used to allege copyright infringement against any another song created afterward that sounds remotely similar. Moreover, the incredibly long term of copyright -- 95 years for Marvin Gaye's song and other works copyrighted before 1978 -- threatens to create a kind of "copyright clutter" in which copyright owners of older musical works are able to assert copyright over short combinations of notes, thereby potentially eliminating those short combinations from (unlicensed) use by others. 

Putting aside the merits of the copyright claims leveled against them, it is a problem for the music industry when some of today's brightest stars -- including Grammy Award winners Bruno Mars and Sam Smith -- routinely face copyright lawsuits, which they often settle by agreeing to give songwriting credit to the other artist who alleges infringement and to pay substantial royalties. Songwriting shouldn't be like walking blindfolded through a copyright minefield. Prominent musicians accused of infringing the copyright of another musical work should invoke fair use, not avoid it. Such a fair use decision would help to clear up the "blurred lines" that cloud music today.

Edward Lee is a professor of law at IIT Chicago-Kent College of Law and co-director of the Chicago-Kent Center for Design, Law & Technology. Read his full article "Fair Use Avoidance in Music Cases" published by the Boston College Law Review here