Hitting the right notes

Tom Bangay

High-stakes copyright claims have seen superstars and labels facing off in court in recent years. But where does creative inspiration end and plagiarism begin, and how might the latest landmark judgments impact an industry in the digital age?

Robin Thicke’s 2013 album, Blurred Lines, topped the charts in six countries on its release, propelled by the phenomenal success of its title track. The song Blurred Lines rode the wave of controversy generated by what many saw as its gratuitous video and lyrics, all the way to riches and superstardom for Thicke and co-producer Pharrell Williams.

 But by 2016 the song had cost the pair some $5.3m, reduced from $7.4m, after a copyright infringement claim in the United States from the estate of soul icon Marvin Gaye. His estate claimed that Blurred Lines copied the ‘feel’ and ‘sound’ of Gaye’s 1977 hit, Got to Give it Up. The lawsuit has opened the door to a string of subsequent claims that threaten to move the needle as to what can, and cannot, be subject to copyright.

Theirs was the biggest in a growing number of music disputes that have seen music legends face off against up-and-coming artists, record companies and each other. The last couple of years have seen the likes of Led Zeppelin, Sam Smith and Duran Duran troubled by copyright woes. Even grizzled crooner Tom Waits has found himself embroiled in a legal battle with a French circus show over the use of 16 of his songs. What is driving the seemingly endless stream of litigation? And what does the remarkable decision on Blurred Linesmean for the future of copyright and creativity?

Revenues in the digital era

‘Music is probably one of the biggest industries being challenged by the development of technology in recent years,’ explains Helen Conlan, a partner at Bird & Bird and Website Officer on the IBA Intellectual Property and Entertainment Law Committee. The industry had to deal ‘first with declining CD sales, then online file-sharing, and now with streaming platforms. In all of that, they’re trying to make sure the person putting in the skill and effort is being rewarded.’

In such an environment, it can be difficult for artists to secure the financial rewards. ‘The music industry has changed in the past 20 years since the digital explosion. Big music conglomerates are desperate to maintain profit margins which are now unsustainable,’ says Paul Fakler, a partner at Arent Fox, with previous clients including
MP3.com and Yahoo. A significant amount of industry-level litigation is ongoing, seeking to decide the different licensing arrangements for streaming services, and particularly the royalty rates.

 There’s very little that’s truly original, especially in a genre like pop

Paul Fakler
Partner at Arent Fox

Streaming giant Spotify is emblematic of the concerns artists have about being compensated fairly. About one-fifth of Spotify is owned by four major record labels, and many artists feel they see too little of the revenues Spotify pays the labels for their work. A 2015 study by the French National Syndicate of Phonographic Publishing and Ernst & Young found that artists receive just €0.69 from every €9.99 monthly premium subscription. Of the €6.24 left after Spotify’s cut, 73 per cent goes to labels, 16 per cent to writers/publishers, and just 11 per cent to the artists themselves.

Against this backdrop, it’s hardly surprising artists, their estates and their lawyers are ready to litigate to protect their revenues. ‘Marvin Gaye’s rights portfolio came about in a time of selling hard products, getting airtime and royalties. But the world has changed and artists need to look at different ways of making money,’ says Conlan.

Copyright disputes have, of course, pitted artist against artist since pop music emerged as a genre. ‘The history of music is the history of building on musical ideas that came before. There’s very little that’s truly original, especially in a genre like pop,’ explains Fakler. ‘Pop hits are criticised as formulaic,’ agrees Conlan, ‘but there’s the question of what’s acceptable to the consumer. What will consumers immediately like, what’s within the realm of the familiar? Artists operate with those kinds of constraints – just like a painter has a palette of paints to work with, the musician knows he has certain tools in the toolbox.’

Won’t back down

Ed Baden-Powell is a partner at Simkins, and formerly a musician and award-winning producer with several platinum records to his name. ‘I’ve had my own material sampled and copied, in ways that were licensed and unlicensed – and Blurred Lines sailed very close to the wind. It’s a style-alike and very close to being a sound-alike, and it has a strong reminiscence, but in my view it’s not the same.

‘Music relies on reminiscence and generic ideas, but we have to allow freedom of expression, whether it’s 12-bar blues or a funky groove from the 70s. It’s just a question of fact in each case, whether you’ve taken the essential elements, or a loose inspiration, from a song. I don’t see how you can legislate for the answer in a specific case – or that you need to – as long as the law allows the line to be drawn fairly.’

 Fakler adds: ‘It’s not at all uncommon for this kind of dispute to arise, but it is uncommon for it to go all the way to trial. They’re usually settled quietly for a small amount of money or a songwriting credit.’ Sam Smith and Tom Petty settled their recent dispute in a relatively amicable, low-key fashion, after the melody of Smith’s Stay With Me appeared to owe a debt to Petty’s 1989 hit Won’t Back Down. Their behind-closed-doors settlement included a 12.5 per cent writing credit for Petty and Jeff Lynne. Petty called it ‘a musical accident, no more, no less’. In the case of Blurred Lines, however, the case proceeded to the District Court for the Central District of California, and its judgment – and eye-watering damages award – will be appealed to the 9th Circuit Court of Appeals.

It’s difficult to prove a negative: can you prove that you didn’t have another song in mind at the time you wrote yours?

Helen Conlan
Partner at Bird & Bird; Website Officer, IBA Intellectual Property and Entertainment Law Committee

The question facing judges is when familiarity tips into plagiarism. Traditionally, musical copyright cases turn on questions like melody, chord progression and key signature. Marvin Gaye’s estate brought into play the signature phrase, hook, keyboard-bass interplay, lyrics and theme of the songs in its arguments, further complicating the Blurred Linescase, particularly in light of the fact that in the US, such trials are heard before juries.

‘A music case for a jury involves a very accessible topic, and everyone has an opinion already,’ says Conlan. ‘In the United Kingdom, you don’t have a jury and you don’t have that “playing to the audience” factor. We don’t have depositions – the evidence consists of witness statement and cross-examination. Witnesses aren’t deposed for days.’

A persistent problem for music disputes is a lack of evidence. The advances in technology have certainly helped in this area, comments Baden-Powell. ‘Nowadays it’s very easy to acquire a copyright in the UK – you don’t have to register it, it just arises. Whether it’s emailing an MP3, or posting to SoundCloud, it’s becoming easier and easier to evidence origination.’ However, when copyrights become the subject of disputes, it can be difficult to meet evidentiary hurdles. ‘People don’t usually evidence their creation of songs with an eventual lawsuit in mind – you can tell your artist to write everything down, but will they?’ says Conlan. ‘It’s also difficult to prove a negative: can you prove that you didn’t have another song in mind at the time you wrote yours?’

Blurred lines

Consequently, those cases that do reach trial can often turn on abstract concepts that may be difficult to explain to jurors. In US trials, ‘both sides tend to put equally qualified musicologists on the stand who decide equally firmly in each direction, and it puts the jury at a loss,’ explains Fakler. ‘The jury can cling to something to put them one way or the other.’ During promotional activity for Blurred Lines, Thicke told GQ magazine: ‘Pharrell and I were in the studio and I told him that one of my favorite songs of all time was Marvin Gaye’s Got to Give It Up. I was like, “Damn, we should make something like that, something with that groove”. Then he started playing a little something and we literally wrote the song in about a half hour and recorded it.’ In hindsight, he might have chosen his words more carefully, particularly given that in statements under oath he admitted that he had next to no involvement in writing the song, was ‘high or drunk’ in every interview he gave to promote it, and he answered the question ‘do you consider yourself to be an honest person?’ with, bluntly, ‘no’.

What will consumers immediately like, what’s within the realm of the familiar? Artists operate with those kinds of constraints

Helen Conlan
Partner at Bird & Bird; Website Officer, IBA Intellectual Property and Entertainment Law Committee

‘As a copyright lawyer,’ says Fakler, ‘there’s no way that should have been ruled as an infringement. It’s very clear to me that a large part of the result was driven by the horribly unfortunate performance by Robin Thicke on the stand and in his deposition.’ The decision that followed that performance may well have ramifications for the entire industry that persist for years. The aftermath has been dramatic. In August 2016, 212 songwriters joined an amicus brief with the 9th Circuit Court of Appeals to support Thicke and Williams in their bid to overturn the judgment.

The high cost of bringing a claim has been a barrier to would-be litigants on both sides of the Atlantic. ‘The absolute cost of litigation, particularly in the US, is so high that I don’t think people are going to bring these claims without the hope of significant reward, because it’s long and painful,’ says Conlan.

However, since Blurred Lines, copyright lawyers in the US have observed an uptick in litigation. Fakler adds: ‘The driver has been contingency-based plaintiff lawyers adopting fee models similar to those in personal injury. And why not – if you have an example of a big multi-million dollar payout, why not try your luck? They want a settlement, not a trial, and they know that publishers want to settle, rather than get hit with the trial cost.’

Complicating matters further, the payout in Blurred Lines factored in other profits consequent on the song, such as global revenues associated with touring that might be consequent of the infringement. ‘The judgment had an economic component that was attached to global revenues, and although copyright is specific to each country, that decision on the sharing of global royalties could be seen as making local laws redundant,’ suggests Baden-Powell. ‘Given that jury verdict, if you were a claimant and forum shopping, the place you’d want to go is a California court.’

Course correction

The final judgment in the Stairway to Heavencase, following the jury’s verdict in June 2016, perhaps indicates a natural course correction. The claim, brought on behalf of the late Randy Wolfe, guitarist with American rockers Spirit, alleged Led Zeppelin infringed the copyright of their song Taurus. The opening sequences of both Taurus and Stairwayfeature chromatic chord sequences played on an acoustic guitar. Led Zeppelin and Spirit shared a bill during their respective careers’ early stages, and the plaintiff’s lawyers argued that Led Zeppelin’s Jimmy Page and Robert Plant would have become familiar with the song.

It’s a question of whether you’ve taken the essential elements, or a loose inspiration, from a song – the law must allow the line to be drawn fairly

Ed Baden-Powell
Partner at Simkins

The jury heard an independent musician perform both works from sheet music and found in favour of Led Zeppelin, although the British rockers were unable to recover the $800,000 in legal fees they spent defending the claim. In comparison, the judge in Blurred Lines wouldn’t allow jurors to listen to the songs side by side in court. ‘That was very surprising, if you look beyond peculiarities of US laws and procedural rules, and might have made a big difference,’ says Baden-Powell. ‘Listening to the recordings of the songs, you hear similarities, but pretty striking differences, and the jury seems to have ignored the fact the lyrics are entirely different.’

For Fakler, the Stairway case represented a possible return to normalcy after Blurred Lines. ‘Stairway was a similarly high-profile case that came out, in my view, the right way. You’ve started to see the pendulum swing back.’ Perhaps most curious was that the guardians of authorship in this vanguard case were Led Zeppelin. Page and Plant have themselves settled numerous cases out of court for undisclosed sums and have changed writing credits on some of their albums to acknowledge the African American blues men who ‘inspired’ their riffs and lyrics on tracks like Babe I’m Gonna Leave You, Bring it On Home, Whole Lotta Love and The Lemon Song.‘Proving the old saw that a stopped clock is correct twice a day,’ Fakler observes, ‘they had not infringed Taurus– the commonalities being invoked by Spirit’s lawyers were so general that it couldn’t possibly be subject to copyright.’

Williams and Thicke will return to court this year, with many looking to its appeal decision for clues.

For now, the music industry will have to wait and see if the decision in the Blurred Linesappeal reinforces the direction of travel from Stairway to Heaven– that musicians will inevitably borrow from and build on each others’ successes – or if it enshrines a song’s ‘groove’ and ‘feel’ as protectable by copyright.

Tom Bangay is a freelance journalist and can be contacted at thomas.bangay@gmail.com