Thursday, March 12, 2015

Five Lessons from the "Blurred Lines" Case

We've received many inquiries as to the verdict in the "Blurred Lines" case (in which a jury determined that the song, "Blurred Lines," written by Pharrell Williams and Robin Thicke, infringed Marvin Gaye's song "Got to Give It Up"). The jury awarded Marvin Gaye's heirs $7.4 million, reflecting the profits earned by "Blurred Lines," which (hard as it may be to accept) was the longest running number one single of the entire decade (racking up sales of $14.8 million copies). The case's outcome is dumbfounding, particularly for musicians. Hindsight, affording us excellent vision, reveals five lessons.
  •   Declaratory actions don't always succeed - The Gaye family didn’t file the lawsuit; it was Thicke and Williams who filed, using a procedure known as a declaratory action (used when a party has been threatened with a lawsuit and seeks a pre-emptive ruling). It's like the reverse Pacman strategy in which the pursued becomes the pursuer. The procedure has its advantages – Thicke and Williams got to pick the location for the case -- but the procedure can also backfire, as some legal experts believe happened here. By initiating the lawsuit, Williams and Thicke may have ruined the chances of a quiet resolution before the song became a super mega hit.
  •  Don't bother with the "high as hell" defense –Sometimes, one party to a lawsuit is perceived as a villain, and its all downhill from there. Thicke admitted during the trial that he wasn’t present when the song was written and was too high on Vicodin and alcohol to compose anything, anyway. That testimony painted him unfavorably as a lying pop star who wanted credit when the song was a hit but who denied liability when accused of infringement. Character judgment shouldn't be a factor when determining substantial similarity … but any case can get derailed when one party's veracity is put into question.
  • Don’t announce you want to copy someone’s song. Thicke told GQ Magazine, “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.” Similar comments were made to other publications. Later when asked by the Gaye Family lawyers what he meant, Thicke's defense was that his comments couldn't be trusted because he was “high and drunk” when he did interviews.
  • Don’t prevent jurors from hearing both versions. Many music listeners don't hear much similarity – aside from the uncopyrightable "live party" elements -- when comparing the recording of "Blurred Lines" with Gaye’s performance of "Got to Give It Up". But the jury never got the chance to make a similar comparison because they never heard Gaye's version. Lawyers for Thicke and Williams argued that Gaye deposited sheet music when he registered his copyright back in 1977 (standard operating procedure for the time) and therefore, the Gaye family’s claim could only be limited to the elements in the sheet music. In hindsight, limiting Gaye's claim to the sheet music may have worked against the "Blurred Lines" crew because it allowed the family's lawyers to take a non-holistic approach to the songs. Instead of getting a total feel for each song, the lawyers disassembled the sheet music and focused on eight distinct notated similarities.
  • Juries are unpredictable. 'Nuff said.