Most civil lawsuits, some say 90 percent of them, are settled before they ever go to trial. The same holds true for copyright infringement lawsuits, say music industry lawyers. Most infringement cases are settled before they go to trial.
Lots of writers of hit songs get approached by people who claim infringement under the hopes that the songwriter will choose to make some kind of settlement offer so that they will go away.
Songwriters tend to ignore frivolous infringement claims because they know it’s costly for those claiming infringement to mount a lawsuit. But if you are the author of a huge hit song with large revenues coming your way –and some similarities exist between the songs — you may decide to settle rather than run the risk that of an unpredictable jury trial. Yet the “Blurred Lines” co-writers, Pharrell Williams and Robin Thicke (but not third co-writer Clifford “T.I.” Harris) started the proceedings that led to the trial. The “Blurred Line” co-writers sued Marvin Gaye‘s family, seeking declaratory relief from a judge that their song was non-infringing on the Gaye Song, “Got To Give It Up.”
What lit the fuse that started the lawsuit?
“Pharrell is a very accomplished songwriter producer and he doesn’t want his reputation tarnished as an infringer, which is probably why he sued,” says one industry executive. “Thicke’s and Williams integrity were being called into question. “
Another reason for the pre-emptive move: the “Blurred” songwriters probably wanted the venue to be in Los Angeles, says Manatt, Phelps & Phillips’ entertainment & media litigation practice co-chair Robert Jacobs. The move could have been precedent setting if Thicke and Williams had prevailed, he adds. Other songwriters and lawyers may have started using the pre-emptive lawsuit as a strategy to push back on spurious claims.
While Harvey Geller, with the Los Angeles law firm of Gradstein & Marzano, agreed it was interesting approach, he still questioned the strategy. “If they want to settle and you instead sue, you are guaranteeing yourself a long and nasty legal battle. It was a really odd procedural maneuver. When you sue somebody, the one thing you can practically guarantee is you will get a cross complaint.”
Can jurors in an infringement trial understand copyright law and music theory?
“Anytime you go to a jury, you are taking a crap shoot of what they will understand and get out of the testimony,” says the music publishing executive. “You could have the musicologist testify for hours and hours, and at the end no one will know which way is up.” Besides adds Atlas Music Group ceo Rich Stumpf, “When you talk to the musicologists and you ask them for an opinion, it all seems to be subjective.”
But can’t the jury just listen to the music and make up their own mind if one song borrows from the other?
Usually, but in this case the Judge ruled that the Gaye family couldn’t play the songs at trial. “The Gaye family was limited to what was filed with the copyright office, and that was a lead sheet,” says the music publishing executive. But Larry Iser, Managing Partner of Kinsella Weitzman Iser Kump & Aldisert, opined out that once the judge ruled against the songs being played “even the Gaye expert struggled to find elements in common in the lead sheets of the two songs. The two songs share more of a genre, style and feel than a note by note copy.”
Yet, at the end of the trial, the lawyers for Thicke and Williams played excerpts of the two songs for the jury. Could that have been a factor in the jury’s decision, wonders the music publishing executive.
How do publishers and record labels protect themselves in these types of situations?
“When publishers cut deals with songwriters, every song comes with a warranty that indemnifies the publisher,” says Atlas Music’s Stumpf, who says even with that, if the song sounds like some other song, usually the publisher will go back to the writer and ask about the two songs. Still, “the publishers make songwriters sign that the song is an original work and what proportion of the song they created and that is what the publisher relies on. If there is a successful infringement lawsuit against your writer’s song, the publisher could say ‘we relied on you so you owe us,’ but most publishers wouldn’t do that. But when you have a case like this with this amount of money at stake, it reminds you that you have to be careful.”
In fact, in cases with this kind of money, the publisher may very well expect the songwriters to write a check to the publisher, if they had to give up their share of the songs’ revenue. “Most of the time, the artist and songwriters doesn’t have the money to pay back the publishers, so it’s more likely they negotiate some kind of business resolution,” says Gradstein’s Geller.
How will the jury’s decision that Blurred Lines infringes on “Got To Give It Up” impact songwriting and infringement lawsuits?
Up until now, the music industry thought you can’t copyright a vibe, feeling or a genre,” says a music publishing executive. “Infrigement has to be based on some element that is copyrightable.” But does the “Blurred Line” decision now change the ballgame, some wonder.
But now that the jury ruled against Thicke and Williams, it may inspire other lawyers to sue over “genre and feel” instead of the song as it was written, Kinsella Weitsman’s Iser says “The whole point of copyright is to progress the art or transform music. If you want to pay homage to someone like Marvin Gaye and then they can come sue you that would be contrary to the purpose of copyright.”
Stumpf agrees and notes, “If you are songwriters you have to be a little nervous. You have all of these years of influence in your sub conscience, it can be a scary situation when you think you own some song you created and then you find out otherwise. And as times goes on and more songs come out, there are sonic things going on in your sub conscience.”
Or does nothing change for songwriters?
“The case has the potential to cause songwriters to think twice, but the truth of the matter is that songwriters rely on their own creative juices. I don’t think that what happened will change the way people do business,” says Manatt Phelps & Phillips Jacobs. “It’s just another cautionary tale of what can happen.”
Gradstein’s Geller says the idea that this lawsuit “will chill artist creativity is nonsense. This is a straight infringement case. You always hear arguments about precedent in cases like this and that the world will end if it is decided a certain way. But the world always goes on. This is not out an out of the ordinary infringement case. I just don’t see the precedent-setting issue here. Its a run of the mill infringement case.”