Last week, a jury in California decided that Pharrell Williams and Robin Thicke should pay $7.4 million to the family of Marvin Gaye, finding that Williams' and Thicke’s 2013 song “Blurred Lines” unlawfully copied Gaye’s 1977 hit “Got to Give It Up.”
At play here is whether or not the composition of “Got to Give It Up” (ie, what can be reflected in sheet music) was too closely copied in the music produced by Thicke and Williams. It’s a different question from comparing the recorded tracks, which do have some obvious similarities. For example, “Blurred Lines” and “Got to Give It Up” are both dominated by falsetto male voices that are high, shrill and happy. But Gaye’s copyright registration was on hand-lettered sheet music that directs neither an upbeat mood nor use of a falsetto vocal technique.
Recognizing this discrepancy, the judge only permitted the jury to hear renditions of the sheet music and stripped-down, edited versions of the Gaye sound recording. On the surface, this would have made it more difficult for Gaye’s family to win: compared to Gaye’s recorded version of “Got to Give It Up,” the simpler, stripped down versions probably sound far less like “Blurred Lines.” Nevertheless, the jury ruled for the Gaye estate.
So what happened?
A closer look shows that the judge erred in his instructions to the jury by blurring the lines between what does and doesn’t constitute copyright infringement.
Copying is okay – to an extent
It’s crucial for a jury to be told that “unlawful copying” only arises if the claimant’s evidence satisfies two tests: the factual question of “did they copy,” and the subsequent question of whether the copying was legally improper.
The two-part copyright test somewhat resembles the familiar two-part inquiry in an auto accident case. In most jurisdictions, it isn’t enough for an injured pedestrian to show that a driver hit him. To succeed, the pedestrian also has to prove the defendant who hit him was driving too fast or otherwise acting “unreasonably.”
In copyright law, the second criterion is particularly fuzzy. The courts give various (unhelpful) names to this second test, such as “substantial similarity” or “improper appropriation.” Essentially the judge will ask the jury whether the copying of protected elements was “too much.”
But big problems arise when only the first criterion (whether any copying took place to begin with) is emphasized to an extent that it drowns out the second.
A bad recipe
Coming into a trial, jury members don’t know the law. They need instructions, and these are provided by the judge (with input from the litigants). Like a recipe, the instructions contain the steps the jury should follow, along with questions it should resolve and the criteria it should use.
But whenever a judge’s recipe is bad, it’s likely that the cake – the jury’s decision – will be bad, too.
Inconsistent and misleading, the court’s 44 Instructions in the “Blurred Lines” case contain directives that may have led jury members to think it was their job to impose liability for what copyright lawyers know is perfectly lawful behavior.
The problem first arises in Instruction 27, which reads:
Anyone who copies original elements of a copyrighted work during the term of the copyright without the owner’s permission infringes the copyright.
In a vacuum, it seems to say that all copying of original elements is unlawful – which, as a proposition of law, is simply false.
Copying something original is often perfectly lawful, not to mention ethical. People find inspiration in past works all the time. Copying an idea – even an idea that’s original – is not merely within the law: it’s encouraged by it.
To illustrate the rule that ideas cannot be copyrighted, consider a magazine cover so famous it’s still studied by art students today: cartoonist Saul Steinberg’s 1976 “myopic New Yorker” view of the world.
Many parodies followed. For example, The Economist published a sketch purportedly showing China’s similarly myopic world view.
It’s clear that the artist who prepared the Economist sketch copied Steinberg’s idea, and recognizable use of Steinberg’s creative idea is lawful. What’s not lawful is to copy too much expression – that is, the details of the copied artist’s aesthetic and organizational choices. At some point, as these details accumulate, enough expression might be copied to be considered “substantial.”
The difference between lawful copying of ideas and “substantial” copying of expression is what the jury should have focused on in the Blurred Lines case – at least, if they were persuaded that copying occurred.
In fact, it’s likely that the jury members were able to quickly make up their minds on the criterion of “copying.” Among other things, the jury must have learned what Robin Thicke told GQ, months before the trial:
Pharrell and I were in the studio and I told him that one of my favorite songs of all time was Marvin Gaye’s “Got to Give It Up.” I was like, “Damn, we should make something like that, something with that groove.” Then he started playing a little something and we literally wrote the song in about a half hour and recorded it.
So if the jury had reason to think copying occurred, and Instruction 27 suggests that’s the whole story, it’s no surprise Thicke and his colleagues lost. But, again, that’s not how copyright is supposed to work.
Ultimately, when Thicke said he wanted to do a song “like that,” with “that groove,” he may have been aiming at copying no more than the idea of Gaye’s song.
Directions never fully clarified
Some of the judge’s other instructions are more accurate. For example, the judge did note at one point that it’s lawful to copy ideas. Nonetheless, the distorted message of Instruction 27 echoes throughout.
For example, Instruction 28 makes it looks like “substantiality” only matters for proof of the first criterion – “Did they copy?” But if a juror thinks she already has the answer to that first question – from evidence such as Thicke’s own words to GQ – she might conclude that she doesn’t need to assess “substantiality” as well. (That is, she might ignore the second criterion.) So, again, it could look to a careful juror as if any copying of the Gaye composition brings liability.
Finally, Instruction 43 – a confusing welter of legal jargon – also suggests to jurors that copying an idea can count as infringement. The jurors are told, among other things, to notice if the claimant’s work and the other work possess a similarity of ideas. The instruction then tells jurors that they can find infringement if they perceive that the “total concept and feel” of the two works “are substantially similar.” The instruction does not tell the jurors to disregard any similarity in “concept and feel” that results merely from the same ideas being used in the works being compared. As a result, the jury may think itself duty-bound to find infringement if two songs have the same “feel” simply because the songs share the same idea – in which case, the jury will have been led to a misguided conclusion.
Because of the trial court’s poor instructions, a retrial of the “Blurred Lines” controversy might eventually be ordered by the Court of Appeal for the Ninth Circuit (less formally known as the “Court of Appeal for the Hollywood Circuit”).
Unfortunately, the Ninth Circuit’s own copyright decisions are full of similar confusions, and leave open the exact possibility exposed by the the “Blurred Lines” case: that use of a predecessor’s idea might result in infringement.
Artists seek inspiration from the past. Through borrowing and building upon ideas and “grooves” from those who came before, culture evolves. In this respect, the “Blurred Lines” verdict sets bad precedent for artists – and for the rest of us.
It’s no wonder that the outcome of this case makes musicians nervous.