Why The “Blurred Lines” Case Could Be Overturned…

Screen Shot 2015-03-11 at 12.43.22 PM

Wallace Collins is an entertainment and intellectual property lawyer based in New York. He has been in the business for over 30 years. Prior to this he was an Epic Records recording artist.  In this post (originally posted on his blog) he explains why the “Blurred Lines” decision could be overturned.

quotation-marks

As a copyright lawyer, it is my opinion that this decision will be overturned on appeal.

The genre or musical style of a song is not protectable under copyright law – the lyrics and the melody are, but that was not the allegation in this case.

The claim here was that defendants copied the style of the Marvin Gaye song, and I do not believe that the jury’s decision would be upheld on appeal as a matter of copyright law (although a jury might not understand that concept).

To date, this is the only copyright infringement lawsuit ever in which no melody, harmony, rhythm or lyrics were copied. The “that songs reminds me of another song” threshold would be a new legal standard. If this is the new threshold for copyright infringement, a lot of modern artists (like Bruno Mars) and 60s British artists (from the Beatles to Led Zeppelin) could be in trouble!
quotation-marks2

 

28 Responses

  1. Anonymous

    “I do not believe that the jury’s decision would be upheld on appeal as a matter of copyright law”

    Agree.

    Reply
    • Musicservices4less

      Hi Wallace,
      Since you have taken a firm position on the outcome of this case on appeal, I would like to point out some factors that may not support that position.
      1. The analysis and opinion of one of the foremost musicologists, Ms. Judith Finell, was used by the Gaye family. I believe it was her work that got this case to trial to begin with.
      2. At the time of the Judge’s determination that this case would proceed to trial, it was also decided that a) the copyright law in effect at the time of filing would be applied and b) only the sheet music and not the recordings themselves would be allowed in evidence. Admittedly, these two decisions by the judge may be more in your favor on appeal.
      3. It is the role of the trier of fact to determine the “truthiness” of all witnesses who testify at trial and it is perfectly legal and required that the jury perform that function.
      4. You have assumed that this case will make it to appeal. I will state that this case will be settled prior to the appeal and confidentiality of that will disappoint us all.
      Having stated the above, the readers of DMN should be warned! The state of civil litigation in the United States today is always, always a crap shoot. No one can guarantee an outcome.

      Reply
      • wallace collins

        As of today, an appeal has been filed (and this case is too important (and too wrong) not to appeal). In modern popular music it is understandable that current artists are effectively midgets standing on the shoulders of giants in order to reach new heights… and some similarities are bound to appear in the new works so created. However, when it comes to the particulars and technicalities of copyright law, emotions (particularly envy and jealousy) are usually not well-suited to reaching a correct resolution (and that applies to the jury as well as the many public opinions that abound on this case).

        Reply
        • Musicservices4less

          Here’s a thought. If the plaintiffs acknowledge that they based their new song on the old Gaye song, why didn’t they at least attempt to approach the publisher of the old song and work something out amicably? Was money that important and respect of prior art not so much?

          Reply
          • Bandit

            Maybe they did. The Beastie Boys approached a music publisher about using a sample, publisher said no, Beasties used the sample anyway got sued and won because there was not enough song there to copyright

            Or maybe they consulted an attorney who said based on how copyright infringement cases are tried there’s not a jury in the world who would find infringement….but I doubt you’ll find an attorney who will stick their neck out that far

        • Ears for Heirs

          Wallace its not about the appeal, its about the post-trial motions: JMOL, Judgment as a Matter of Law (formerly Judgment Notwithstanding the Verdict). The judge could decide very quickly (unlike in an appeal) to void the jury’s verdict, because no reasonable juror could find that the two songs are similar, as a matter of law. Also, the judge has not ruled yet on the DJ (declaratory judgment) cause of action. Judge Kronstadt, who is considered a very respected copyright expert, could also overturn the jury by declaring that there is no substantial similarity. This is something a judge, not a jury, decides, because it is within the realm of “equity”. Just a couple of considerations from a music litigator perspective.

          Reply
          • Bandit

            Judgment as a Matter of Law formerly Judgment Notwithstanding the Verdict

            Yes a judge could make that determination and probably should have in this case. Did defendant file a motion for that? I really wonder what the attorneys in this case were thinking. Some of the things they let their clients say really looks like poor legal counsel.

            So why do you think the judge in this case did not?

            To force an appeals court to clarify the law and procedure in copyright litigation?

            or he simply likes to watch people squabble and make fools of themselves in court?

          • Ears for Heirs

            OK, first off the judge, who is an astute copyright judge and I’m quite sure he knows this case is a terrible precedent, denied a summary judgment motion some months ago. That motion, by King (repping Thicke and Pharrell), was basically asking him to determine as a matter of law that the case had no legs, that there could not be copyright infringement. Even if the judge agrees (and I bet he does), he has less chance of being overturned on appeal after all the evidence is in and the jury makes its verdict, than at a summary judgment hearing before it ever gets to the jury. So, after the jury makes its bad verdict, he can do essentially the same thing he would have done at summary judgment months ago, that is, rule that no reasonable jury could find copyright infringement and void the verdict … and then it will be harder to overturn on appeal than if he had done it before hand. King has 28 days from discharge of the jury to bring the motion, which is called a motion for judgment as a matter of law (used to be called JNOV, judgment non obstante verdicto, but they got tired of Latin). I would expect that motion to be filed soon.

    • food for thought...

      “So here’s an example as food for thought: if someone does a cover of a bob dylan song (Like A Rolling Stone) to sound like nine inch nails (Head Like A Hole), they’re busted on the dylan part, not the nine inch nails part…

      This case is more about perception than actual infringement. It’s important to be clear about the actual composition. If this ruling holds (and it may or may not) it significantly expands the definition of infringement from actual composition to production styles, which IMHO is dangerous. I’m just confused as to how “production” becomes “composition” in a composition infringement lawsuit…”

      Reply
  2. Anonymous

    Whoa, even Vogue thinks Pharrell should appeal.

    People really don’t like this.

    Reply
  3. Bandit

    The jury was using the “truthiness” standard.

    Going with their gut despite what they were instructed by the judge to deliberate on. And despite decades of copyright litigation precedence

    Reply
  4. Yep

    bottom line – the tracks will make more cash out of this. All copyright holders will make more cash. It a PR result! Everyone’s winning.

    Reply
    • LOL

      There’s some truth to that – I know Iive listened to both songs more than ever in the last 2 days. If not for the news, I would have 0 streams.

      Reply
  5. R.P.

    Exactly. If this case wins then anyone can copyright every 2,3,4+ series of notes and then sue everyone. Makes zero sense. It wasn’t just the style, it was a series of 3 notes that are the same which gave it that feel on the bottom end as well, but that would be ludicrous.

    Reply
  6. John Matarazzo

    I Have to agree with Mr. Collins. The elements of a musical creation cover by copyright were not even
    considered in this case.

    Reply
  7. David

    As I understand it (and I’m no lawyer), jury awards of damages are quite frequently reduced on appeal, but jury findings of fact (in this case, the fact of copyright infringement) are overturned much less frequently. The general principle is that judges decide on points of law, but juries decide on points of fact. To overturn a jury verdict it would be necessary to show either that the judge had erred in law, e.g. by misdirecting the jury on the relevant legal issues; or that the jury’s verdict was so perverse that no reasonable jury could have reached it. Personally, just based on listening to the two songs in question, I think the verdict was wrong, but I don’t think it reaches the level of ‘perversity’. The best chance for an appeal may be to argue that the jury heard some evidence that should not have been admitted. I believe there was much argument during the trial over whether the jury should hear the recordings, as distinct from the sheet music, and the judge did allow some extracts from the recordings to be played.

    Reply
    • Anonymous

      “I don’t think it reaches the level of ‘perversity’”

      I do, given the chances of future abuse.

      Reply
      • David

        If you think that a jury should (legally) be expected to consider the effect of their verdict on future cases, I sincerely hope you never sit on a jury.

        Reply
        • Bandit

          You are correct a jury shouldn’t a judge should decide the effect on future copyright cases

          The judge in this case should’ve stepped in after the verdict and said to the jury “You have failed to properly apply the law to the facts, go back and deliberate some more.”

          Reply
          • Anonymous

            “The judge in this case should’ve stepped in after the verdict and said to the jury “You have failed to properly apply the law“”

            Yup.

  8. wallace collins

    In modern popular music it is understandable that current artists are effectively midgets standing on the shoulders of giants in order to reach new heights… and some similarities are bound to appear in the new works so created. However, when it comes to the particulars and technicalities of copyright law, emotions (particularly envy and jealousy) are usually not well-suited to reaching a correct resolution (and that applies to the jury as well as the many public opinions that abound on this case).

    Reply
  9. anon

    A question and a comment:

    A. Question: This is my understanding of how the intrinsic portion of the 9th Cir test works:

    1) It’s a purely subjective evaluation of whether the total concept and feel of the two works are substantially similar–depending on the response of the ordinary reasonable person.

    2) Expert evidence is not considered in applying the intrinsic test. The fact finder simply reviews the works and makes a subjective decision as to whether they seem to be substantially similar overall. It’s about the visceral response to the works.

    Against this backdrop, how does a judge, who has already determined that the 9th Cir.’s Extrinsic test has been satisfied, rule in favor of a JMOL?

    Isn’t the whole purpose of the Extrinsic test to determine whether there is anything for the jury to evaluate using the Intrinsic test and if there isn’t anything to evaluate dismiss the case on summary judgment?

    So if the judge didn’t think that there was anything for the jury to evaluate, wouldn’t he have just dismissed on summary judgment? And if he determined that there was something worth evaluating (as he did), then, given the wide birth allowed by the Intrinsic test, how can the jury’s finding be held to be unreasonable?

    If you’re going to find infringement here, it seems like the nature of the infringement falls under the category that Nimmer calls “comprehensive non-literal similarity,” which is concerned with the copying of non-literal elements of the work where the fundamental essence or structure of the original work is copied into the infringing work.

    That starts to get pretty abstract for sure, and imho “Blurred Lines” would have to be considered an edge case for that at best. Indeed, “comprehensive non-literal similarity” is not a great fit for music in general (makes more sense for a book or film), because there’s often such a thin line between a protectable expression and scenes of faire (elements of a work that are standard, stock or common either in general or in relation to a particular topic).

    But based on listening to a piano and vocal rendition of both songs, can we really say that no reasonable jury could have determined that “Blurred Lines” and “Gotta Give it Up” don’t have a relationship of comprehensive non-literal similarity, with respect to total concept and feel?

    At some level, wasn’t the defendants’ whole goal to copy the fundamental essence or structure of “Gotta Give it Up” into “Blurred Lines” while ideally staying far enough away from the infringement line that they didn’t have to pay the Gaye Estate for the privilege of doing so?

    Isn’t the subtext of this case the jury saying that if you want to be compensated like a giant, then you can’t just be a midget standing on a giant’s shoulders. You need to be a giant yourself. Otherwise, you need to pay a fee to sit on the giant’s shoulder

    B. Comment: To me, this case is ultimately all about the 9th Cir.’s Inverse Ratio Rule. Where the showing of defendant’s access to the copyrighted work is as strong as it was here, the bar for fulfilling the Extrinsic test is proportionately lowered. This makes it much easier for the owner of a famous copyright to get their case in front of jury, because by its very nature, showing access is going to be easier. In this case, it was easier still, because the defendants acknowledged their access and the influence of the Gaye’s work.

    At the end of the day, the defendants told the Gaye Estate “Even though we’re standing on the giant’s shoulder, we ain’t paying giant’s tax. If you don’t like it, sue us.” So the Gaye Estate called their bluff, and the Inverse Ratio Rule helped facilitate them carrying it out.

    So ultimately, for giants (and owners of giant’s copyrights), the Inverse Ratio Rule is a shield against infringement suits by true midgets (e.g., the infringement action based on an unsolicited song or script problem). It’s also a sword against insurgent midgets (would-be appropriators who are having success by standing on the giant’s shoulders), because it makes it easier in that case to get things in front of a jury ( a place most people don’t want to be).

    In the 2nd circuit, this case probably comes out differently, because a trial judge there would have had more latitude to look at the facts and dismiss the case on summary judgment. But in the 9th Cir., if you can get over that Extrinsic test bar, the judge can’t dismiss on summary judgment, and you’re getting to the jury.

    I agree with the person who said this thing will probably settle. Now that the Gaye Estate has $7.4 million to lose, they have a lot more to lose than they did before.

    But if the appeal does go all the way, I don’t think that it’s a slam dunk by any means that the decision is overturned, because of the way the 9th Cir. handles this stuff. I guess we’ll see.

    Reply
  10. 4reelz

    They replayed the parts of Marvin Gayes song. The lead melodies and lyrics are changed. Other than that its a replay of a hit…to make another hit instantly. Its like going to Karoke and making up your own words and melody over an existing hit. Even Thicke admitted where they got it from although we could all hear it. This is common in music production/business. Mostly with new writers trying to get in. What happens is the known producer takes the song changes the key signature/tempo add distracting sound at the head of the arrangement and a few other tricks and boom. Then the small writer who is not know hears the track on the radio etc and from there it goes to court or a beef. Point being is just pay for what you want.

    Reply

Leave a Reply

Your email address will not be published.

Verify Your Humanity *