Ask Dr. Copyright

copyright questionDear Doc:

You wrote about the legal fracas over the song “Blurred Lines” in a prior issue of your column. What’s up with that?

Farel Thick

Dear Sir:

That case went to the jury about three weeks ago, and, true to the name of the song, it truly did blur the lines of what constitutes infringement of copyright! Those guys who wrote and performed “Blurred Lines” were sued by the children of Marvin Gaye who own the copyright in the sheet music for the song, “Got to Give it Up”.  That is because Blurred Lines sounds an awful lot like Got to Give it Up – it’s got that late ’70s vibe. The style of one reminds me of the other. Case closed, right? Well…not so fast. As with any story by “The Doc”, this one has more twists than Chubby Checker (and he lives right around the corner from the Doc, so the Doc oughtta know, dude!)

When the actual music of the two songs is compared, it turns out that there is not a single sequence of notes in common. None. Nada. Not like earlier cases like Vanilla Ice (who now does construction work in Florida – a strange place for a guy named Ice, but I digress), who took a whole bunch of notes from David Bowie’s “Under Pressure” and turned them into that memorable hit, “Ice, Ice, Baby” by adding just one note; or George Harrison’s taking “He’s My Guy” and turning it into “My Sweet Lord”. Those cases involved copying the notes. Erbatimvay, as they say in Pig Latin.

In this case, no notes were copied.  Just a “feel”; a “style”. The issue is whether those things are protected by copyright in the sheet music, and as any second year law student (who’s chosen to take a class in copyright law) can tell you, the answer is a resounding, “NOPE”! The similarities – use of falsetto singing and cowbell (MORE COWBELL!) may be evocative, but they’re not part of the copyrighted musical composition.

The judge and jury, however, seemed determined to punish Robin Thicke for being a boorish 455H0L3 on the witness stand – and regardless of what the copyright law actually says, the jury listened to both songs, found infringement and ordered payment of $7.3 million in damages. As Bullwinkle Moose used to say, “That is antihistamine money…it is not to be sneezed at!”

The Doc is confident that on appeal (and the case is being appealed, leading to ever higher lawyer bills, of course!) the verdict will be thrown out. After all, borrowing of styles is what art is all about. Where would the Beatles have been without Jerry Lee Lewis and Chuck Berry? Where would Picasso have been without Cezanne? Where would Seeger have been without Guthrie? Where would Sigfried be without Roy? It’s a truism that copyright protects expression, but not idea. The judge and jury in the Blurred Lines case got these confused. Maybe the lines really were blurred. Let’s hope a higher court will see more clearly. If not, expect the date of the verdict to become known as “The Day the Music Died” (with apologies to Don McClean.)

Interested in crisp, clear, black and white answers to challenging legal questions? (Then don’t ask a lawyer or a judge!!) The attorneys at LW&H will at least help you cut through the confusion. Ask them to help.

Until next month, you Got To Give It Up.

The “Doc”
— Lawrence A. Husick, Esq.