A year and a half ago, we wrote about the fact that the estate of Marvin Gaye had been threatening Robin Thicke and Pharrell Williams over their hit song "Blurred Lines" -- leading Williams and Thicke to file for a declaratory judgment that the song didn't infringe
. As we noted at the time, even though Blurred Lines clearly has a similar "feel" to Gaye's "Got to Give it Up," having a similar "feel" is not infringement. There's the whole "idea/expression" dichotomy. The copyright is on the specific expression
and not the general idea of the song. As the original filing noted, Gaye's heirs appeared to be "claiming ownership of an entire genre, as opposed to a specific work."
That case has been going on for a while now with a lot of back and forth -- including a wacky deposition
last year in which Thicke admits to being too high to really have had much to do with the writing of the song. However, last week, the case shifted into high gear with an interesting set of rulings that highlight the somewhat... er... "blurred lines" between what is, and what is not, covered by the copyright in question.
The key issue: the heirs of Marvin Gaye own the copyright on the composition
, but not
on the sound recording. This came out back in October, when Williams and Thicke failed
to win on summary judgment. However, in that ruling, the judge, John Kronstadt, realized that the family really only held the copyright on the composition that was a part of the sheet music, and not the recording itself (which includes a number of other elements) because, under the 1909 Copyright Act (which was in force when they registered the work), they did not take the proper steps to protect the full recording.
Because of this, things really started to get funky for them. First, the judge told the Gaye Estate that it could not play the recording of "Got to Give it Up,"
because the recording
has elements that are not protected
by the copyright on the composition
-- and thus it would be unfair for the jury to hear the full sound recording, as they would be unable to separate out the copyright-covered composition elements with the non-copyright covered additions to the sound recording. Given that this is already about how much the songs "feel" similar, you can see why the Gaye Estate was rather apoplectic about this. Part of the excluded part, by the way, is the sound of Gaye's voice -- which the judge ruled was not
covered by the copyright. Instead, Pharrell and Williams' lawyers suggested that the Gaye Estate could, instead, just have a musician come into court and play the song from the sheet music that was registered.
A couple of days later, the judge put out another ruling
[pdf] after further considering the matter and changed that original ruling somewhat. In what appears to be an attempt to split the baby, he argued that while it would be wrong to let the Gaye family play the full recording... they could, instead, create a new version of the old sound recording that strips out
the unprotected bits:
Therefore, although the Gaye sound recordings may embody the copyrighted compositions at issue,
they also contain additional material. Consequently, there is a measurable risk that their wholesale
admission into evidence would unfairly prejudice Plaintiffs.... In performing their intrinsic
analysis of the songs, jurors would be required to filter out such elements as percussion, party sounds
and backup vocals that could well influence their responses to the songs as “ordinary reasonable
person[s],” and it could be difficult for them to mentally separate what is and is not protectable in this
capacity.... Further, there would
be little probative value in asking them to perform this challenging task. Thus, even if it were determined
that Plaintiffs copied any unprotected elements embodied in the recordings, this would not tend to make
it more or less probable that they copied protected elements of the compositions at issue.
There is merit, however, to Defendants’ contention that it could be difficult for them to present their
evidence of intrinsic similarity if the sound recordings are inadmissible in their entirety.... As the ordinary person
presumably cannot sight-read music and determine its sound, the sheet music alone is inadequate for purposes of this test....
Plaintiffs have proposed that the musicologists can “play on a keyboard at trial the elements of the
sheet music deposit copies for the Gaye compositions that are claimed to be similar to Plaintiffs’ two
songs.” ... Although this method may be helpful for focusing the jury’s attention on particular
elements, if this were the only evidence presented as to the intrinsic qualities of the Gaye compositions,
the jury may not have the opportunity to consider elements of the compositions that are properly within
the scope of the subject matter protected by Defendants’ copyrights.
The copyright deposits are not comprised of notes alone. They contain lyrics to be sung to melodies, as
well as certain other elements. The “total concept and feel” of a piano tune without words may differ from
that of a vocal melody. For these reasons, relevant portions of the Gaye sound recordings that
substantially reflect the subject matter of the copyright deposit sheets could have probative value with
regard to the intrinsic characteristics of the works. To avoid prejudice to Plaintiffs, these recordings
would need to be edited to remove all unprotected elements such as percussion and backup vocals. In
addition, the length of such edited recordings would be considered in evaluating whether they were
tailored to the allegedly protected content asserted by Defendants. Any potential prejudice to Plaintiffs
caused by the airing of Gaye’s voice, which is not protected, is something that could perhaps be
addressed by a limiting instruction.
Pursuant to this Order, Defendants may seek the admission of a sound recording. However, it will be
necessary for Defendants to edit the versions of the recordings that were previously proffered. A new
version must conform to the terms of this Order. It must be one that satisfies the Court that it strikes an
appropriate balance between presenting a recording that contains what is reflected on the deposit copy,
without including potentially prejudicial sounds that are not protected.
The judge also noted that, due to earlier moves in the case by the Gaye Estate (including submitting a mashup that has Gaye's vocals over Blurred Lines, that the legal team of the Estate "possess the technical capabilities to isolate protected from
unprotected elements of the recordings of their compositions" so they need to get to work on that.
This seems like exactly the right legal ruling. The judge properly noted that only part of the song is actually covered by copyright, and it would be hellishly unfair to use the elements of the song that are not
covered by copyright (including Gaye's voice) to prejudice the jury. He's really trying to make sure that the trial turns on the parts that are actually covered by copyright. But, of course, the Gaye Estate hates
that, because it does seem like, if anything was copied, it may actually have been the unprotected
parts of Gaye's song -- which, in being unprotected are totally free to be copied
In response, the family is looking to appeal the ruling
, as they're not at all happy
with this turn of events, arguing that it's crazy and unprecedented. To read their filing
[pdf] on the matter, you might think that the ruling to only play the protected parts would bring down all of Western civilization.
The Court’s ruling would have a devastating impact on the rights of owners of pre-1978 musical compositions by allowing wholesale copying of compositional elements not found in pre-registration published versions of the works or within the deposit copies themselves. For example, under this Court’s ruling, a clever infringer would be able to compare sheet music or deposit copy lead sheets of the works of the Beatles, The Rolling Stones, Elvis Presley, and, of course, Marvin Gaye, with the composition as embodied in the recordings of those icons, and take with impunity all compositional elements not found within the sheet music or deposit copies. It would create a situation where the compositions in the recordings are derivative works incapable of copyright protection because, as pre-1978 works, the recordings could not be submitted as the musical compositions. That is not and cannot be the law.
Actually, that could be and is
the law. You only get to exclude uses on the things actually covered by copyright.
And, in response to the Gaye Estate, the lawyers for Williams and Thicke have hit back as well
pointing out that the judge got it right, and the Gaye Estate is trying to effectively claim copyright over uncopyrighted content. Their opposition
[pdf] is a good read as well:
Marvin Gaye never owned a copyright in “Got to Give It Up.” His
publisher, Jobete, owned the copyright. The copyright notice at the bottom of each
deposit copy states: “© [year] Jobete Music Company, Inc.” The copyright only
descended to his heirs after his death because the renewal rights vested in his heirs
as a matter of law when Marvin Gaye died. It was never Marvin Gaye’s song.
Whatever Marvin Gaye allegedly did in the recording studio to create other
musical elements, and for which there is no evidence, anyway, has no bearing on the
scope of any copyright under the 1909 Act, and certainly not on Jobete’s copyright.
The 1909 Act is what it is. There is nothing unfair or unjust about it. There is
no reason for the Court to change its rulings because Defendants do not like them,
think they are unfair, or make hyperbolic claims about the supposed impact on the
music industry. The simple fact is that, prior to 1978 (and after), compositions for
popular music were considered to be the melody, harmony, and lyrics—i.e., the
song. No songwriter considered a hi-hat part, vocal “woo,” falsetto vocal style,
omission of a guitar, keyboard part, or other element of a sound recording of the
song to be the song itself. And if they did, they included that element in the written
composition they published with notice—just as Jobete did hear with a “bass intro”
in “Got to Give It Up.” Defendants now are facing a jury trial and wish that they
owned something other than the published composition that is nothing like “Blurred
Lines.” Their desire to distract and mislead the jury is not basis for reconsideration.
As for the massive wave of infringement the Gaye Estate lawyers predict? Williams and Thicke's lawyers point out -- as we did above -- that this doesn't make any sense at all. The law only protects the stuff covered by copyright:
Defendants’ dire warnings about the demise of the United States copyright
law as a result of this Court’s pretrial rulings are greatly exaggerated. Defendants
argue that if pre-1978 copyrights are limited to the published compositions that were
copyrighted, then anyone can copy composition al material in any pre-1978 sound
recordings that was not copyrighted. Defendants are absolutely correct. That is
how copyright works.
Later, they remind the court and the Gaye Estate that, indeed, since under the 1909 Act -- until 1972 -- sound recordings weren't subject to copyright at all, the Gaye Estate seems to be trying to rewrite history.
Indeed, sound recordings themselves were not subject to
copyright under the 1909 Act prior to 1972. Elvis Presley’s famous sound
recordings from the 1950s and 1960s are not subject to statutory copyright. There is
nothing unfair or wrong about that. Congress provided the protection it provided.
As the lawyers point out, this didn't mean that you couldn't protect songs under copyright, it's just that you had to do it right:
Defendants argue that the Court’s ruling “would create a situation where the
compositions in the recordings are derivative works incapable of copyright
protection because, as pre-1978 recordings, the recordings could not be submitted as
the musical compositions.” ... This assertion is flat out wrong.
Compositions in the sound recordings could always be fully protected—all that was
required was to publish sheet music with notice affixed that embodied all the
compositional elements in which copyright was claimed. Any vocal or instrumental
part can be notated. Lead sheets were common because songwriters generally did
not consider the performance elements (drums, bass, etc.) to be the composition: the
“song” was the melody, harmony, and lyrics. Defendants’ “notion that common
use of lead sheets somehow precluded a composer in the 1970s from submitting a
score indicating all instrumental or vocal elements in which the composter claimed a
copyright is without foundation.”
In short, the Gaye Estate wants to go back in time and pretend that under the 1909 Act they have a copyright on the sound recording, even though the law is clear that they don't. And they're flipping out, because it's pretty clear that the key to their case is in the unprotected parts of the recording. But if that's what Williams and Thicke copied, that's perfectly fine, because that part is in the public domain
where everyone is allowed to copy it
There is an unfortunate habit of many legacy copyright supporters to pretend that copyright gives them a lot more than it really does. And, all too often, judges fall for it. But not everything gets covered by copyright, and it's good to see a case where the judge is making it clear which parts are protectable and which are not.