Trusting Your Music Copyright Case to a Jury

I know you all heard about the $7.4 million verdict for the Marvin Gaye family over the popular tune “Blurred Lines” penned by Robin Thicke and Pharrell Williams. The story has been everywhere – on the morning news, in the newspapers, in the Twitter feeds and all over Facebook.

Here is a mash-up someone put together to compare the two produced songs:

I have several thoughts on the decision. First, the puns by media. Second, the verdict did not come out how I expected. Finally, the idea put out by the media that the verdict will change the music industry forever is not one I am ready to agree with.

So. Many. Puns. “Copyright Became More Blurry.” “Thicke and Williams are Going to Have to “Give It Up” ($7.4 million, that is) to the Family of Marvin Gaye.” “The Only Lines Blurred Are That Of Copyright Law.” Can we all agree to just “Give It Up” on the puns? See, even I can’t help myself.

If I am being completely honest, the verdict did not produce the result I anticipated. If you follow my Twitter feed, you noticed I was always in the camp of #TeamThickeWilliams – even disagreeing with good friends. I based my reasoning on two points – similarity, but not infringement and unsympathetic plaintiffs.

First, the jury heard only a stripped down version of the original musical work copyright of “Got to Give It Up.” Remember readers, there are two copyrights on every song you actually hear. There is the musical work copyright (the sheet music and lyrics), which was in question in this case and then there is the sound recording copyright (the copyright in what you actually hear). At issue in this case, was the sheet music or the copyright in the musical work.

The Thicke/Williams team successfully put forth a motion to not allow the sound recording, with all the fancy bells and whistles, to be played for the jury. Meaning, the jury only heard “Got to Give It Up” as if someone was playing the sheet music with no production value added. Imagine a senior piano recital with few or no other instruments, no or few singers and no sound effects. For this longtime piano player who had many years of music theory, I just did not see infringement when I looked at the sheet music, which was in question. I heard similarities, but I did not hear or see copyright infringement. You can listen to snippets of what the jury heard from each composition by going HERE.

The second reason I thought the verdict would come out differently is because of the plaintiffs. The wife and children of deceased Marvin Gaye brought forth the case. Besides sheer luck, what role did these family members have in creating the music? The crying in interviews to the media reeked of greed and profiting off of the success of someone else. It was hard for me to feel sorry for them, and I am one of the biggest advocates for copyright protection. I thought it would play that way to a jury too. Personally I would have been more sympathetic to a record label who still owned the rights to the sound recording than the bunch who brought the case. But, juries are unpredictable.

Since the verdict, there have been countless stories on how this decision will change the music industry forever. A chilling effect and the fear that record labels will not take a chance on songs or artists that remind you of artists from earlier days. While I can appreciate the concern, I do not think the concern is realistic. I also think news organizations are getting it wrong in an attempt to find another angle to the story.  Maybe it’s because I play for #TeamLawyer, but what I do think will change is how the attorneys in this field practice law.

It has been a long time since a copyright case for music, and music that has reached such popularity, has gone to trial. This week’s decision also happens to be the largest jury verdict for a case like this. The Hollywood Reporter stated the highest case previously was over Michael Bolton’s “Love Is A Wonderful Thing” to the tune of $5.4 million for using elements of the Isley Brothers’ “Love Is a Wonderful Thing” in 1994, 21 years ago. As I wrote about a few weeks ago in my GRAMMY® wrap up, most cases settle out of court. Once again, juries are unpredictable. Couple that with the rarity of musical copyright cases, and you have a perfect storm of speculation. It’s the unicorn of trials – celebrities, music, high dollar figures and a case with factors not seen every day, and over a product, music, which every person can relate.

This case was proven not unlike other copyright cases dealing with music. It was not unusual.  There were expert musicologists providing testimony to educate the non-musically inclined jurors on notes, keys and chord progression.  For a similar type case, read Bright Tunes Music Corp v. Harrisongs Music, Ltd. dealing with George Harrison’s “My Sweet Lord” compared to “He’s So Fine” performed by the Chiffons. In this digital age, I think the case serves as more of a “dog in the yard.” It’s a warning to those making music in the digital realm, but it seems unbelievable to me that it will stifle true creativity.

What I think will change is the way in which lawyers advise their clients. It had been 21 years since a jury verdict came out in the millions of dollars. Even though the Bolton verdict was before my time, I am sure in many settlement discussions the Bolton verdict was referenced and was used as a tool to “encourage” parties to settle before going to trial. I think the decision in this case will have the same effect. No one wants to be the attorney on the losing side of a case topping the Thicke/Williams jury verdict. And, while, the clients have the ultimate say so, I think you will see more cautious advice given and exercised in those attorneys representing musicians and songwriters.  At least for a time I think you will also find more people seeking out licensing.

Juries are unpredictable. And while we all love music and all believe our musical taste is the best, do you really want your client exposed to the subjective views of twelve unknowns?  Unknowns who may or may not play music or read music?  Or unknowns who have simply created sounds on their computer that mimic music?  It’s risky, and this week showed it can be up to $7.4 million dollars risky.  What have been your observations with this decision?  Take part in the Comments section below and Stay Tuned In!

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3 thoughts on “Trusting Your Music Copyright Case to a Jury

  1. I listened to the two sound bits.

    MIDI !?!?!?!? Really!!!!

    Even with the poor quality examples, while there were similarities, they were not the same. I can’t believe that the defense let that happen. There are so many scientific ways to compare sounds. It seems to me that the lawyers for the defense are musically / scientifically deficient.

    I was also very disenchanted by the “tears” from the family. Actually, I was repulsed by this show of fake emotion. I also agree with your point about what part did they play in the creation of the song written by their relative.

    I’s a real shame that the verdict came down this way. I don’t think it was right.

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