from the unfortunate dept
Back in March we wrote about the terrible decision by the 9th Circuit to uphold the also awful lower court ruling that the Pharrell/Robin Thicke song “Blurred Lines” infringed on Marvin Gaye’s song “Got To Give It Up.” If they had actually copied any of the copyright-protected elements of the original, this case wouldn’t be a big deal. But what was astounding about this ruling is that nowhere is any copyright-protected expression of Gaye’s shown to have been copied in Blurred Lines. Instead, they are accused of making the song have a similar “feel.” That’s… bizarre. Because “feel” or “groove” is not protectable subject matter under copyright law. And yet both the lower court and the appeals court has upheld it. And now, the 9th Circuit has refused to rehear the case en banc, though it has issued a slightly amended opinion, removing a single paragraph concerning the “inverse ratio rule” of whether or not greater access to a song means you don’t have to show as much “substantial similarity.”
Again, this is a ruling that should greatly concern all musicians (even those who normally disagree with us on copyright issues). This is not a case about copying a song. This is a ruling that now says you can’t pay homage to another artist. It’s a case saying that you can’t build off of another artist’s general “style” or to create a song “in the style” of an artist you appreciate. This is crazy. Paying homage to other artists, or writing a song in the style of another artist is how most musicians first learn to create songs. It does no harm to the original artist, and often introduces more people to their work.
Pharrell and Thicke can (and perhaps will?) ask the Supreme Court to hear an appeal, but, as always, it’s pretty rare to get the Supreme Court to do so. And, on top of that, as long as Ruth Bader Ginsburg remains on the court, the court has a terrible record on getting copyright cases right (and, yes, it’s almost always Ginsburg writing the awful copyright rulings).
As we noted last year, this case is already having chilling effects on musicians and songwriters who are literally afraid to even name check their influences for fear of a lawsuit. And, similar lawsuits are rapidly being filed. Indeed, Ed Sheeran is dealing with a lawsuit over whether or not his song “Thinking Out Loud” is too close to Marvin Gaye’s “Let’s Get It On.” The songs do have the same chord progression, but are pretty different. Of course, having the same chord progression allowed Sheeran to sometimes easily perform a mashup of the two songs at concerts. But again, that’s a tribute, but it’s now being used against him.
Of course, that case has taken a really weird turn in that a new “party” has entered the fray. An organization called “Structured Asset Sales” wants to be a plaintiff too. And because you probably don’t recall Structured Asset Sales last big chart topping hit, it’s apparently an operation that “securitized” future earnings of various musicians (remember Bowie Bonds?). And one of the artists using Structured Asset Sales is Ed Townsend Jr., a co-author of “Let’s Get It On”. The Hollywood Reporter link above has a lot more details on what’s going on in that case (which is wacky). In short, SAS tried to get into an earlier case filed by Townsend’s heirs. That attempt to join the lawsuit was rejected by the courts, and while that’s being appealed, it has filed a new lawsuit.
And all this because two songs have the same general chord progression. And, I realize for some non-music nerds, having the same chord progression may suggest copying, I’d suggest you watch the following few videos to disabuse you of that notion:
Watch both of those videos, and then recognize how all those songs could potentially be infringing under the Blurred Lines ruling, which tragically will stand thanks to the 9th Circuit’s failure to correct its horrible mistake. Hopefully the Supreme Court will actually weigh in, but that’s both unlikely and… potentially not helpful.