' Will the “Blurred Lines” Verdict Fuel Excessive Litigation? | MTTLR

Will the “Blurred Lines” Verdict Fuel Excessive Litigation?

In the past two months, three major pop artists have paid royalties to older musicians because new pop songs sounded too much like older hits: Sam Smith paid Tom Petty for the similarities between “Stay With Me” and “Won’t Back Down” and Pharrell Williams and Robin Thicke paid the family of Marvin Gaye for the similarities between “Blurred Lines” and “Got to Give It Up.”

Concerning the Smith-Petty dispute, a mashup of the two songs seems to show strong similarities. Although Smith’s representatives and co-writers acknowledged the “undeniable similarities” of the two songs, they claimed that they were “Not previously familiar with… “’I Won’t Back Down’” and that all similarities between the songs were “complete coincidence.” The two artists settled the dispute outside of court. Tom Petty does not seem to think that Sam Smith and his co-writers infringed on purpose: “The word lawsuit was never even said and was never my intention . . . all my years of songwriting have shown me these things can happen . . . a musical accident no more no less.

On the other hand, the Williams/Thicke and Gaye dispute was much more venomous and personal. In  a federal trial in the Central District of California, a jury awarded damages of nearly $7.4 million dollars in a trial in which entertainment lawyer Richard Busch succeeded in branding Pharrell and Thicke as “liars who went beyond trying to emulate the sound of Gaye’s . . . music and copied . . . Got to Give It Up outright.” With tears in her eyes, Marvin Gaye’s daughter Nona told reporters that the verdict made her feel “Free from … Pharrell Williams and Robin Thicke’s chains and what they tried to keep on us and the lies that were told.” NYU music professor Jeff Peretz believes that the jury reacted negatively “to the hubris and to the arrogance of Robin Thicke and Pharrell” given that this suit began because Pharrell and Thicke originally filed for a declaratory judgment from the court.

So one pop musician was humble and agreed to pay an older musician for the similarities between the two songs, while the other two were arrogant enough to think they could avoid justice so they got smacked down by the ($7.4 million) Hammer of Thor. Respect your elders. Easy takeaway, right?

Here’s the problem: the Gaye v. Pharrell verdict may have opened up a minefield for future songwriters and record labels. Despite how this video may cause the average listener to believe this was an open and shut easy verdict, the two songs do not have the same “melodic and harmonic structure” according to music professor Jeff Peretz. Peretz claims what was similar about these songs was the rhythmic structure and “vibe…[which] up until this particular case, that was never a copyright-able thing.” Pharrell essentially admitted he was “channeling …that late-’70s [Marvin Gaye-esque] feeling” and was paying homage to the sound of that musical time period. “’Blurred Lines’ differs substantially and audibly from ‘Got to Give It Up’ in . . . melody and lyrics—even lyrical topic.

The problem with giving infringement based on “feel” is that it is an impossible-to-find line that gives songwriters little idea of what is infringing and what is original. Everyone can name at least a few modern-day songs which sound similar to older songs. Internet mashup artists have highlighted this: a country music mashup with interchangeable elements from six country hits, Lady Gaga’s “Alejandro” and Ace of Base’s “Don’t Turn Around,” Bruno Mars’s “Locked Out of Heaven” vs. The Police’s “Roxanne,” In fact there is an entire website dedicated entirely to putting together songs that sound similar. One has to wonder if anything is original anymore.

Will this newest verdict encourage musicians to start suing everyone? Will it become more lucrative to sue as opposed to writing new songs?

To conclude, I would like to emphatically state that I do not endorse the lyrics or message of the song “Blurred Lines” in any way (I much prefer “Weird” Al Yankovic’s parody “Word Crimes” which has the same catchy beat with none of the misogyny). But given that everyone can name at least one song that sounds like another, and there are now more copyrighted songs in existence than ever before (a fact that is going to continue to be true), perhaps it makes sense to worry that songwriters may have an exceedingly difficult time writing new hits without stepping on the toes of a previous musician.

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Mark McLoughlin is an editor on the Michigan Telecommunications and Technology Law Review, and a member of the University  Michigan Law School class of 2016.

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