Intellectual Property

Blurred Lines: Can You Copy A Music Genre?

This Ninth Circuit decision could damage copyright's important limits, spurring more lawsuits and chilling the creation of new music.

By  
on

The purpose of copyright is to incentivize new creations, but overly broad protection can actually harm innovations. The reason for this is simple: there is nothing new under the sun. As a result, you can’t copyright a style or a genre. Or, at least, you shouldn’t be able to, even if Marvin Gaye’s heirs think you should.

All knowledge builds on existing knowledge and creation, which is why any functioning copyright system must have important limits. Fair use is an important limitation on copyright. The idea/expression dichotomy, by which an underlying idea is not protectable, is another limit. Not all original expression is copyrightable, either, for example, where the idea and expression are so intertwined that they essentially merge. And yet, a recent Ninth Circuit decision refusing to overturn the lower court’s finding of copyright infringement in Robin Thicke and Pharrell’s song “Blurred Lines” could damage these important limits. To put it bluntly, at the end of the day, the outcome will simply be more lawsuits, which may lead to a chilling effect because it’s impossible to create new music without inspiration from existing music.

The “Blurred Lines” case (which goes back to 2013 and was covered by Above the Law here) does deal with a number of procedural issues. While the Ninth Circuit panel was divided in its opinion, I have to say I’m not sure that the defendants could sufficiently overcome these deficiencies. I won’t delve into the federal rules of civil procedure, but instead will stick to the copyright issues (but this is why knowing the rules of civil procedure is so important in litigation!). The majority opinion focuses on the procedural hurdles while the dissenting opinion focuses on copyright.

Anyway, back to the facts of the case. Robin Thicke, produced by Pharrell, recorded the hit single “Blurred Lines” in 2012. It was, apparently, an overly played song in 2013, becoming one of the all-time, top-selling singles. It was also controversial because of the explicit music video and misogynistic lyrics, with some critics claiming that the song promotes date rape. The song was banned at a number of universities in the United Kingdom. And, of course, Robin Thicke is a controversial figure himself. People I’ve talked to about the case have called Thicke misogynistic, creepy, exploitative, a jerk, and, well, other colorful names. The heirs of Marvin Gaye quickly sued, claiming that “Blurred Lines” infringed Gaye’s song “Got to Give It Up,” and a federal jury agreed in 2015. The case was appealed, and earlier this week, the Ninth Circuit released its opinion, upholding the jury’s decision.

I am in no way defending Robin Thicke or his song. Robin Thicke may very well be a despicable human being, but that is not a basis for copyright infringement. There are plenty of people who I dislike personally or disagree with, but that doesn’t mean that I think that should have any bearing on copyright claims. At issue in this case are mere snippets, a few musical notes, sometimes amounting to a single second in a song. This is not enough to result in infringement, lest we want a result where any song created could be construed as infringement. Although the majority takes pains to say, “We have decided this case on narrow grounds,” the end result is likely to see more litigation for other songs.

Judge Nguyen’s dissent pointedly calls out the majority’s decision in her opening sentence: “The majority allows the Gayes to accomplish what no one has before: copyright a musical style. ‘Blurred Lines’ and ‘Got to Give It Up’ are not objectively similar. They differ in melody, harmony, and rhythm. Yet by refusing to compare the two works, the majority establishes a dangerous precedent that strikes a devastating blow to future musicians and composers everywhere.”

Judge Nguyen does a pretty good job of illustrating how ridiculous the claims of infringement are, noting that even where the plaintiffs point to pitch similarity in the “signature phrases,” “Three consecutive pitches is just the sort of common theme that will recur in many compositions.” The melodic snippets “last[] less than a second in a composition that lasts over four minutes.” She also points out that the rhythmic pattern at issue “lasts approximately 1.5 seconds and consists of an eighth note repeated without any variation. Similar patterns are found in numerous other works. This element, devoid of its melodic and harmonic context, lacks any originality.” Additionally, while the melodies rise and fall in the two songs’ “signature phrases,” they differ with respect to the number of notes, rhythmic placement, include different harmonies, and begin and end on different pitches.

Sponsored

Perhaps the clearest example of how much of a stretch it is to assert copyright infringement in this case is the discussion over “Theme X” which “Refers to another four-note melodic sequence.” The dissent inserts the actual music sheet for “Theme X” in Gaye’s “Got to Give It Up” (lyrics: “Fancy lady…”), “Blurred Lines” (lyrics: “If you can’t hear…”) and also “Happy Birthday” (lyrics: “Happy birthday…”) See for yourself:

After looking at these notes, Nguyen continues, “To see any correspondence between the two four-note sequences, one would have to shift and invert the pitches, a feat of musical gymnastics well beyond the skill of most listeners. Where short and distinct musical phrases require such contortions just to show that they are musically related, there is no basis to find them substantially similar.”

Nguyen also points to the clear policy implications of the “Blurred Lines” decision: “The Gayes, no doubt, are pleased by this outcome. They shouldn’t be. They own copyrights in many musical works, each of which (including ‘Got to Give It Up’) now potentially infringes the copyright of any famous song that preceded it.” She includes a footnote pointing out that “Happy Birthday” — which was also the subject of similarities in “Theme X” — was still under copyright protection at the time Gaye created “Got to Give It Up.” This outcome is exactly why we should worry, even if you despise Robin Thicke or the song “Blurred Lines.” This case could open the floodgates to lawsuits over genre similarities, dragging in musicologists to argue over whether certain melodies or rhythms copy each other. There’s a reason why we categorize and define music into genres; it is precisely because of their similarities. When I listen to a song that’s a blues song, I can identify it as such because it sounds like other blues songs I’ve heard, same with jazz or disco. If the minor similarities between Marvin Gaye’s song and “Blurred Lines” are sufficient to warrant a finding of copyright infringement, we will likely see a string of litigation involving pretty much every song being played today. With the heavy weight given to the musicologist’s findings in this case and the flood of litigation that will surely follow, perhaps musicology is a good profession to consider right now.

Sponsored

Krista L. Cox is a policy attorney who has spent her career working for non-profit organizations and associations. She has expertise in copyright, patent, and intellectual property enforcement law, as well as international trade. She currently works for a non-profit member association advocating for balanced copyright. You can reach her at kristay@gmail.com.

Topics

, , , , , , , ,