Thursday, March 12, 2015

"Blurred Lines" is clear infringement

Am I the only one in the world who thinks the Blurred Lines judgment is right? From the Internet, it sure seems that way.

Robin Thicke and Pharrell Williams broke into jail here. From a litigator's perspective I have no hesitation in saying they are reaping what they sowed.
"Blurred Lines" ended up in court when Pharrell and Thicke sued the estate of Marvin Gaye for a declaratory judgment, which is where you ask a judge to say "this thing you claim isn't true". And from a copyright lawyer's perspective I say this is a judgment that shows you can create a derivative work of something without actually incorporating that work.

And that principle is nothing new.

First, the songs. Here's Blurred Lines

And here's Marvin Gaye's "Got to Give it Up"

Is the one song a derivative work of the other? Based on there being no note-by-note copying, the creators of "Blurred Lines", Pharrell and Robin Thicke, believed no. A jury said yes. And the music industry went crazy claiming it would "kill copyright" by allowing people to "copyright a genre".

But the law has seen this issue before.

In Suntrust v. Houghton Mifflin, Suntrust Bank (the trustees of the estate of Margaret Mitchell) sued Houghton Mifflin for publishing a book called "The Wind Done Gone" (TWDG). TWDG was based on "Gone With The Wind" (GWTW). It presented itself as a perspective on slavery in the rural south. But there were significant similarities between the two works, including that TWDG:
  1. Explicitly refers to GWTW in the preface.
  2. Reproduces core characters, character traits, and relationships from GWTW (although not their names).
  3. Reproduces famous scenes and other elements of the plot of GWTW.
The general principle in copyright law is that it's not infringement to copy someone's ideas, just the way they expressed them.

Suntrust is traditionally used in law schools to teach the parody defense. That matters in this context: parody is a type of fair use, and fair use only becomes relevant when you're defending against infringement. Which means the other side showed infringement first. And that happened here: at trial and again on appeal Suntrust demonstrated that TWDG infringed against GWTW. (In case you're curious, Houghton Mifflin convinced the judge TWDG was a parody, and the case eventually settled.)

Suntrust picks up a theme that I've written about before: that you can infringe by copying things other than the specific wording of a situation, if what you copied is something that is so specific to a particular creation that it is the expression of that creation. The parallel is to using pre-existing characters in new literary works, and the law around this is both settled and unsurprising: if you use a character created by someone else you're infringing them, and if you don't have a defense to that infringement then you need a license.

I won't reproduce that entire post - it's linked below if you're interested. But it's not that big a stretch to go from saying that it's infringement to copy someone's literary character even if you don't copy any of the words that comprise the description of that character, it's also not a stretch to say you can copy someone's song without needing to take any of its notes.

The quick-and-dirty test for copyright infringement turns on two points: access to the original work and similarity between the works. Apparently there was some divergent testimony about whether Pharrell and Thicke intended to copy Gaye's work or just used it as inspiration. The jury seems to have concluded it was the former. In any event there is no doubt they had heard it before. So all it took was for a jury to find the two works were similar. And the jury did.

This is hardly copyrighting a genre. If it is then the IP protection on any character is also a copyright on the genre in which those characters arise. But there's a reason the X-Men or Avengers have never had a character like Superman or Batman, although they have lots of superheroes of their own. Inspiration is fine, but bears risks. When he created the Marvel universe, Stan Lee was undoubtedly inspired by the superhero characters who came before his. But his creation was all his own.

It may be the case that it's harder not to infringe when creating music because songs are shorter, there's only so many ways to combine chords, etc. But that's a long way from saying that infringement will automatically occur just because of similarity. And in any event music has had this problem for years: sampling in electronic and rap music requires clearing the rights to the sampled music even when it's nothing more than a bass line or a few notes. This case may seem huge, but on the law it's nothing new.

I admit I have a personal feeling of nostalgia here. I got my start in entertainment law by working on a file in which the new management of Cinar Entertainment sued its old directors, the founders of the company. The new management came into place after the Canadian Broadcasting Corporation ran an exposé on Cinar alleging that they had committed tax fraud under the Canadian entertainment tax credit program. Cinar's management sued the CBC for libel. But it turned out that Cinar may have done exactly the things that the CBC accused them of doing. Ever since then I've had a soft spot for those kinds of lawsuits: where you sue someone for saying you did something you actually did. And, at least according to twelve jurors, that's exactly what Pharrell and Thicke did.

The easiest way to avoid losing a fight is not to pick it in the first place.

Suntrust v. Houghton Mifflin, 268 F.3d 1257 (2001)  
Legal Minimum post on pre-existing characters and copyrights. 
"How I Won the Blurred Lines Trial"


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