In the music business, few things are as sacrosanct as credit and compensation. Inevitably, many aggrieved songwriters will hear news of the nearly $7.4 million verdict against Robin Thicke and Pharrell Williams for lifting from Marvin Gaye‘s “Got to Give It Up” to create “Blurred Lines” and consider it to be a sign that filing a copyright lawsuit makes sense.
In the days since the jury read the verdict — which Howard King, Thicke and Williams’ attorney, says he will appeal — opinions of the verdict range from “ridiculously problematic” to cheers of “no more plagiarism… no more interpolating.” The attitudes are perhaps reflective of larger ones — confirmation that the expansive scope of copyright is eating the young, comeuppance for artist exploitation, a sign that the law trails modernity.
Yet for all the controversy that the “Blurred Lines” case has generated, the verdict is itself hollow. Make no mistake: it will be talked about decades from now, as we do about the 1976 ruling determining that George Harrison made a “subconscious” infringement on “He’s So Fine” to create “My Sweet Lord.” But even after hearing musicologists break down the songs in question — not to mention Robin Thicke playing a piano medley on the witness stand in an effort to demonstrate how one song can influence another — the five women and three men who comprised the “Blurred Lines” jury hardly are Supreme Court justices. There’s not much legal precedent from the jury’s decision, and every reason to believe it will be a rare one.
Some things do figure to change thanks to the highly publicized victory for Gaye’s family. But first, and perhaps more significantly, several things won’t.
For every “Blurred Lines” verdict, there are hundreds of unsuccessful lawsuits alleging song theft. Ask Kanye West, Coldplay and Elton John, all of whom have killed lawsuits in recent years without ever having to take a witness stand. Federal judges simply won’t tolerate allegations concerning the infringement of unprotected, generic ideas — and any attorney not warning clients of the long odds is committing borderline malpractice.
Anyone seeking a reason why the “Blurred Lines” verdict was different should start with Gaye’s popularity: Not every musician has a Wikipedia page with a substantial section on “legacy,” but Gaye did. There was never any doubt that Williams had access to “Got to Give It Up” — indeed, he and Thicke admitted they were influenced by the song. Under what’s known as the “inverse ratio rule,” plaintiffs have a lower standard of proof of similarity when a high degree of access is shown, and while the “Blurred Lines” judge didn’t cite the rule in allowing a trial, it’s easy to imagine that he respected Gaye’s name enough to let a jury decide the issue of copyright infringement. Once the case got into the hands of laymen, all bets were off.
Now, dozens in the music industry are expressing concern. Veteran publisher Richard Stumpf, chief executive of Atlas Music Group, says that a musician’s subconscious influences now present a “scary situation.” Attorney Larry Iser believes it might “inspire other lawyers to sue on genre and feel instead of the song itself.” Glen Rothstein, another lawyer, says it could be a “game changer” for artistic freedom. Time will tell. But if history is any guide, even a lawsuit the size of “Blurred Lines” won’t hold back artists from pushing boundaries. Ricky Reed, a producer/songwriter who has worked with Jason Derulo, Pitbull and — of all people — Thicke, says, “The creative community should not write from a place of fear. We will not censor ourselves.”
If anything does shift as a result of the “Blurred Lines” verdict, it could be tactics.
Major artists from years past may feel encouraged by the verdict to attempt to wrangle a piece of profits through settlement, as Tom Petty did against Sam Smith over “Stay With Me.” Some might even try lawsuits. When they do angle for a percentage, they’ll have a nice round number shoot for: 50 percent. In awarding damages, the “Blurred Lines” jury came to $4 million, which was half of the publishing income, according to testimony at trial. (An additional $3.4 million was awarded in profits.) Asking for an equal share — with nods to the “Blurred Lines” case — may become the new standard.
Songwriters, publishers and record companies on the defensive still have wind at their backs. As mentioned, for all the “Blurred Lines” hullabaloo, most plaintiffs won’t have Gaye’s stature and will still be burdened by a trail of unsuccessful suits demonstrating that proof of similarity won’t come easy. In fact, in the days leading up to the trial, the Gayes’ lawyer worried that pre-trial rulings that limited the scope of copyright claims and evidence would open the doors to wholesale infringement of classic songs.
Once legal letters come, they’ll be dealt with accordingly. Just don’t expect those on the receiving end to make a rush to the courthouse like the one that Thicke and Williams made by pre-emptively suing the Gayes in the summer of 2013, which some legal experts now feel was a mistake. It’s one thing to shrug off an alleged infringement as nothing more than the lifting of feeling. It’s quite something else to invite a long and nasty legal battle with the possibility of a jury’s unpredictability.
This article first appeared in the March 21 issue of Billboard.