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Sept. 16 — A recent jury verdict that the hit song “Blurred Lines” infringed a Marvin Gaye copyright is affecting the way popular musicians do business.
The “Blurred Lines” case may have changed what constitutes copyright infringement in pop music, and musicians—specifically R&B artists—are being more careful, giving their influences writing credits and royalties to avoid similar situations.
However, it's unclear how long this trend will last, or whether the verdict will hold up.
On March 11, a U.S. District Court for the Central District of California jury ruled that Robin Thicke's and Pharrell Williams's 2013 release “Blurred Lines” infringed R&B legend Marvin Gaye's 1977 song “Got to Give It Up” (Williams v. Bridgeport Music Inc., C.D. Cal., No. 2:13-cv-06004, 3/10/15).
Copyright law requires that both extrinsic and intrinsic similarity be established for infringement to be found. But it seems that the jury focused mainly on the intrinsic portion of the test.
It did not appear that Thicke and Williams had copied any extrinsic, concrete musical ideas from “Got to Give It Up”—like melodies, harmonies or lyrics—but the jury ruled for Gaye likely because the intrinsic “feels” of the songs were similar.
The jury awarded Gaye's estate $7.4 million in damages and a songwriting credit with accompanying royalties. The damages award was cut by Judge John Kronstadt to $5.3 million on July 14.
Going by reports in the music industry press, there has been a noticeable uptick in musicians adding writing credits for influences on hit songs since the ruling, specifically for R&B songs like “Blurred Lines”:
• Mark Ronson and Bruno Mars credited the Gap Band on their 2015 mega-hit “Uptown Funk,” due to similarities between the chorus of that song and the Gap Band's “Oops Up Side Your Head.”
• Miguel, whose 2015 album “Wildheart” peaked at No. 2 on the Billboard chart, credited Smashing Pumpkins frontman Billy Corgan on the song “Leaves,” based on similarities with the Pumpkins' 1996 hit “1979.”
• Jidenna's “Classic Man,” which peaked at #22 on the Billboard Top 100 this summer, includes a writing credit for Iggy Azalea due to similarities between the bassline of “Classic Man” and Azalea's 2014 hit “Fancy.”
“Ever since the decision of Robin Thicke and Pharrell, we believe that it was important to make sure that we are safe,” Jidenna said in an interview broadcast on New York radio station WQHT-FM (Hot 97). “When that Robin Thicke verdict came out, we realized that the game had changed in music.”
In addition, in January—not long before the “Blurred Lines” verdict came down—Sam Smith announced he had credited Tom Petty and Jeff Lynne on his 2014 hit “Stay With Me” because of similarities between the choruses of “Stay With Me” and Petty's 1989 hit “I Won't Back Down.”
The specter of the “Blurred Lines” case hangs over every writing credit.
“I view this as a result of the ‘Blurred Lines' ruling. To the extent there were similar attributions, I don't think they were as frequent or visible as they are now, and it's likely all because of the litigation,” Jonathan D. Reichman of Kenyon & Kenyon LLP, New York, told Bloomberg BNA.
The fact that “Blurred Lines” was an R&B song may explain why R&B artists are being cautious specifically.
“I think in all areas and genres of music, people are inspired to take advantage of themes or motifs from previous works, but I think artists in the R&B field are probably particularly sensitive and nervous—not because of any legal or artistic distinction between their music and other music, but just because it's a prominent case in their style of music,” Reichman said.
Kristelia A. Garcia, a law professor the University of Colorado, Boulder, said that the nature of R&B music made infringement cases in that genre unpredictable, and that this could also help explain the writing credit phenomenon.
Courts generally use written sheet music to determine whether there is extrinsic similarity between two works, Garcia said.
Traditionally, genres like R&B and hip-hop are more rhythm-based, and don't include sheet music; Pharrell's evasive responses to questions in a deposition about whether he can even read sheet music indicated that he didn't use sheet music when producing “Blurred Lines” either, she said.
“At best, the judge is looking at similarities in the transcription of what Pharrell wrote and what Gaye wrote, but not in the actual composition. Unlike in classical or rock music, there would be no music to compare,” Garcia said.
“You can see an opportunity for lots of mistakes to be made by a judge and jury and their best guess of what the sheet music should look like,” and this uncertainty may cause R&B artists “to be more conservative with songwriting credits,” Garcia said.
Reichman said that musicians are hoping to appeal to an influencing artist's “better nature” with offers of writing credits.
“It may be the artist's feeling that the inspiration is so obvious that word would get out to the prior artist anyway, so why not show your best face to make it look like you always intended to do the right thing,” Reichman said.
Garcia said that writing credits are like a “form of currency” in the music industry these days, because they tend to be given out liberally, and giving songwriting credits to avoid infringement liability would be a “natural extension.”
“Anybody who adds a ‘baby baby' to the end of a song gets some kind of songwriting credit,” Garcia said.
The value of the songwriting credit depends on its percentage and the success of the song itself. Garcia said that she believed artists would normally offer a “straight (even) split” among a number of songwriters for songs with this type of preemptive crediting.
Reichman said that the exact percentages in these resolutions are kept “extremely confidential.” Reichman said their value generally wouldn't rise to the level of damages awards from an infringement case, but would allow the credited writer to avoid the burden of litigation.
Garcia said that the damages award and the potential royalties from “Blurred Lines” may have been close, though, based on the court's intent to compensate Gaye's estate for the value of the song and also to impose on Thicke and Williams “some punitive amount.”
However, writing credits in themselves do not absolve an artist of possible liability—there may be a financial agreement underlying this arrangement to prevent a lawsuit—and Reichman called the approach a “double-edged sword.”
“I think any lawyer would advise their client that by affirmatively crediting third parties before an issue has come up, they're really raising a red flag and potentially inviting an objection from a prior artist,” who may take it as an acknowledgement of infringement and say that a writing credit isn't sufficient compensation, Reichman said.
The recent attributions have been related to songs with extrinsic similarities like melodies instead of similar intrinsic “feels,” and this may indicate greater concern about an increase in infringement suits following “Blurred Lines,” but not necessarily a change in the infringement standard.
There is also still a possibility that the “Blurred Lines” verdict will be vacated on appeal, or that courts won't take the verdict into account in future infringement cases.
“I think most future cases will draw back to the old copyright infringement paradigm,” Reichman said. “I think courts are cognizant of the impact of decision on the commercial marketplace, and the attention generated in the artistic community with the risk of a ‘chilling event,' and it could become a factor in appellate review.”
Garcia also said that she believed that the “Blurred Lines” case—which she said lacked clarity and was overbroad—was an outlier.
“I suspect when all is said and done—whether on appeal or in later cases—the holding itself will be narrowed, because the holding is broad. It's just too sweeping,” Garcia said.
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