It was decided by a Californian court earlier this week that Blurred Lines, the hit single by Pharrell Williams, Robin Thicke and T.I, infringed on the copyright of Marvin Gaye’s Got To Give It Up.
The trial came to an end with Gaye’s children awarded $7.3m in damages. Although the court decided that Williams “unwillingly” wrote a song very similar to Got To Give It Up, the Gaye’s lawyer Richard Busch alleges that they copied it deliberately, branding the pair liars and going as far as to say that the Gayes would be seeking an injunction to halt further sales of the song.
The verdict has attracted outcry from the creative community with many commentators in the music press taking the view that the verdict is a disaster for songwriters. For example, the NME writes: “Yesterday's outrageous, indefensible verdict is an assault upon the livelihoods of all creative people, everywhere. It sets an absurd new precedent that could effectively render the time-honoured artistic techniques of pastiche and homage illegal.”
Williams and Thicke are going to appeal against the verdict, with their lawyer Howard King saying: “We owe it to songwriters around the world to make sure this verdict doesn’t stand.” Added King: “I think this is a horrible decision that is going to affect whether or not record labels provide the necessary funds for new music to be created.”
Lawrence Iser, an intellectual property attorney and managing partner of Kinsella Weitzman Iser Kump & Aldisert in Los Angeles tells Music Week: "Recording artists and producers need the freedom to go into a studio and not be inhibited creatively by the fear that they will be sued for producing a song in the famous style of an iconic performer of the past,” says “The jury found that Williams and Thicke did not act 'willfully' which means that they did not set out to copy Gaye’s song. Marvin Gaye may have been the Prince of Soul, but he didn’t own the exclusive rights to his musical genre."
But does the case actually set a new precedent for all songwriters? “I don’t think it creates any new precedent,” says Nigel Davies, a consultant at Gordon Dadds LLP in London. “I think it simply uses existing law in order to reach a decision, which is partly reached by the judge and partly reached by the jury in terms of the actual amount of damages. The precedent was already there in that the law was already there. But it’s obviously a huge case and a huge amount of money, because it’s a huge hit.
There are naturally concerns amongst songwriters and publishers that the outcome of this case will lead to an increase in legal action being brought against songwriters in the future for writing songs that are inspired by other songs or genres, but there is of course a huge difference between being inspired by something and blatantly copying it. “Whether [this case] will actually lead to more claims will still depend on the same old trodden rules,” adds Davies. “I would say that it will probably make more people start to think about it. Whether they then proceed or not is difficult [to know] but it will certainly make people think about and make people talk about it, but it doesn’t create a new precedent.”
Another central concern is that this case will be responsible for creating an environment in the music industry in which music creators are too worried to express themselves fully due to a fear of being accused of copying. “It would be very disappointing if something like this were to stifle people’s creativity," adds Davies. "The fact that people write within the same genre, I don’t think is an issue. In fact it isn’t an issue. It shouldn’t stop people writing a rock and roll track or a blues track, because it sounds a little bit like a rock and roll or a blues track. I think there’s a huge difference between writing within a genre and copying."
So how vulnerable are songwriters going forward? No more or less vulnerable than they ever have been before, according to Davies, because the law hasn’t changed. It is also worth noting that lower profile litigation takes place all the time without the media coverage and huge damages figure that this trial has resulted in. "I think what your question is, in a sense, is have we moved into a world in which, if you write a blues song, you’re going to be worried about somebody who wrote another blues song suing you. I think the answer to that is we haven’t moved into that world and it shouldn’t stifle creativity. I don’t think it does increase vulnerability, I think what it does do is it brings to the fore the difficulties of the law and the difficulties you encounter in day to day dealings with songs.”
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