More than 200 musicians filed an amicus curiae brief with the Ninth Circuit Court of Appeals on Tuesday, saying that a Los Angeles-area court’s ruling on music copyright issues in Pharrell Williams's and Robin Thicke's song "Blurred Lines" establish a legal gray area that could hurt creativity.
Last year's ruling reignited a debate that has endured for decades – if not centuries – around the line between creative inspiration and theft.
Music, like most art forms, is an ever-evolving form of expression. Every song on the radio today harks back, in some way, to those that came before. Musicians not only study and learn from their predecessors, but also borrow from their work as well.
In the past, copyright infringement cases have centered around measurable elements of a song. How many notes are the same? Are there added flourishes that show the artist built upon the work of others, rather than simply copied the melody or harmony note for note? But the "Blurred Lines" case shifted the conversation from an objective analysis to the subjective feel of the song, and that, some musicians say, sets a "dangerous precedent."
The ruling has already had a chilling effect on the music industry, according to music copyright expert Charles Cronin, a lecturer at the University of Southern California’s law school, who says the judgment last year expanded the scope of music copyright far beyond what it has been in the past.
Now, the music industry is pushing back. Mr. Cronin is just one of several musicologists who filed a separate amicus brief, saying that upholding the lower court’s ruling could be immensely damaging for the music industry, given that supposed "copying" was more about the song's overall feel than specific elements, like lyrics or rhythms, that have typically been grounds for copyright infringement.
“It represents an expansion of what are considered to be copyrightable elements,” Don Gorder, the chair of the Music Business and Management department at Boston’s Berklee College of Music, tells The Christian Science Monitor. “That has everybody frightened because that sort of stuff happens all the time. And that has never added up to copyright infringement.”
In 2015, an LA jury ruled that Thicke’s 2013 hit,” Blurred Lines” – already controversial for its lyrics and music video – had copied Marvin Gaye's 1977 song "Got to Give it Up." Jurors awarded Mr. Gaye's surviving family members more than $7 million in damages, later reduced to $5.3 million, for copyright infringement.
But what the jury had focused on, many contend, was a vague sense of 'groove' or 'feel' to the songs, rather than specific lyrics or notes. The ruling caused an uproar in the music community, where fellow artists said it "blurred lines," indeed, between inspiration and plagiarism. Other musicians have expressed concerns that the ruling, if upheld, will restrain their craft.
The case sets a "dangerous precedent," George Howard, a professor of Music Business and Management at Berklee College of Music, tells the Monitor – echoing artists who fear that thinning boundaries between tribute, innocent inspiration, and intentional stealing will discourage creativity.
Previously, plagiarism was defined as “substantial similarity” in melody, harmony, lyrics, or rhythm, according to Professor Gorder. The “Blurred Lines” decision saw those elements expand to include the much more vague “groove” or “mood.”
Among those who signed the brief are artists as diverse as members of nerd rock band Weezer, the classic rock duo Hall & Oates, the pop punk band Fall Out Boy, and R&B singer R. Kelly. In total, 212 musicians and groups made clear their dissatisfaction with last year’s ruling.
“All music shares inspiration from prior musical works, especially within a particular musical genre,” wrote the artists in their brief:
By eliminating any meaningful standard for drawing the line between permissible inspiration and unlawful copying, the judgment is certain to stifle creativity and impede the creative process. The law should provide clearer rules so that songwriters can know when the line is crossed, or at least where the line is.
In fact, the artists say, most of the most influential musicians in history have drawn on their predecessors for inspiration:
One can only imagine what our music would have sounded like if David Bowie would have been afraid to draw from Shirley Bassie, or if the Beatles would have been afraid to draw from Chuck Berry, or if Elton John would have been afraid to draw from the Beatles, or if Elvis Presley would have been afraid to draw from his many influences.
That tradition of "drawing from" those who came before includes Marvin Gaye himself, Gorder agrees. "That’s the danger of this holding," he adds: "it has given a license to bands to say that anyone is stealing their music, even though there may be no similarity in the melody, or the lyrics, or the harmonies."
And music experts say its impact is already clear. Increasingly, musicians and songwriters are bringing similar infringement cases to court. British singer-songwriter Ed Sheeran is just one of several famous artists who has been impacted by the ruling, after LA-area musicians Martin Harrington and Thomas Leonard filed a $20 million suit, claiming that his 2015 hit "Photograph" is too close for comfort to their song "Amazing." (The pair are represented by Richard Busch, also the attorney for Gaye's family, The Los Angeles Times reports.)
However, the 2015 verdict may be overturned, some industry and copyright experts believe.
“Increasingly, these claims are speculative and opportunistic and are based on very, very slim similarities, or simply the sound or style of the second work,” says USC's Cronin. “If this verdict is allowed to stand, it will have a very telling effect on writers and performers down the line.”