Kal Raustiala
Kal Raustiala

Kal Raustiala is a professor at UCLA School of Law. Christopher Jon Sprigman is a professor at the New York University School of Law and co-director of the NYU Engelberg Center on Innovation Law and Policy. They are co-authors of “The Knockoff Economy: How Imitation Sparks Innovation.” This op-ed appeared March 12 on Slate.

“Blurred Lines” was the most talked-about single of 2013. Partly because it was an insidiously catchy pop confection that sat atop the “Billboard” Hot 100 for 12 weeks. And partly because of the controversy over whether the song, and especially the accompanying video (which racked up almost 400 million views), was misogynistic and “rapey.”

Now “Blurred Lines” is having a second moment. The song has been the subject of a pitched legal battle between the family of the late Marvin Gaye and songwriters Robin Thicke and Pharrell Williams. Members of the Gaye estate publicly accused the musicians of copying key elements of Gaye’s iconic 1977 song “Got to Give It Up.” Williams and Thicke preemptively sued the Gaye estate, seeking a court declaration that they did not copy Gaye. And this week the verdict came down. The “Blurred Lines” team was found liable for copyright infringement and ordered to pay nearly $7.4 million in damages.

This is one of the largest music industry copyright verdicts in history. But the biggest losers in this saga aren’t Williams and Thicke, who can readily afford the millions each. It’s all of us who love music. The “Blurred Lines” verdict may end up cutting off a vital wellspring of creativity in music — that of making great new songs that pay homage to older classics.

“Blurred Lines” unquestionably references “Got to Give It Up.” Indeed, Williams and Thicke made clear that the feel of their song and Gaye’s were very similar. The key issue in court was whether they crossed the line into copyright infringement — and where exactly that line is.

So, what precisely did Williams and Thicke copy? We should start by making clear that they did not copy any of the specific sounds on Gaye’s classic recording of “Got to Give It Up.” This is not a sampling case, like the famous 1990s suit between Rick James and MC Hammer over “U Can’t Touch This.” Cases like that, and a host of others, put what many consider a sad end to the era of free and easy use of sampling in popular music.

Instead, and somewhat unusually, the “Blurred Lines” dispute was technically about whether Thicke and Williams copied Gaye’s musical composition — in effect, his sheet music. By the time Gaye recorded “Got to Give It Up” in 1977, musical sound recordings were covered by copyright. But the copyright protection for sound recordings was (and is) narrow — it is limited only to reproduction of the actual sounds on the protected recording — aka, sampling. Mere “sound-alikes” do not violate the sound recording copyright.

What this means is that all the elements of “Got to Give It Up” that were not contained in the written composition but were added into the sound recording later, were supposed to be irrelevant to the lawsuit, even though those elements include a lot of what makes the two songs sound alike. Even if the feel of the two songs seems very similar — even if, when hearing “Blurred Lines” for the first time, you might have thought, “this really reminds me of that Marvin Gaye song” — that is not enough to declare Williams and Thicke liable. There has to be something more. And that something more has to be the copying of some specific elements in the sheet music.

The problem — and the reason the verdict in Blurred Lines is such a disaster — is that the jury appears to have been swayed by things that were not supposed to matter. The background chatter, the party vibe, even the percussion that makes “Got to Give It Up” an iconic hit were not in the written composition. They were added later, in the studio.

A careful comparison of the two songs illustrates why the jury’s decision, however well-intentioned, is so problematic from a legal perspective. The songs’ melodies are very different, so this most basic element of musical composition can’t be the basis for copyright liability. The same goes for the lyrics — there is no similarity whatsoever. Both songs do feature similar cowbell-centric percussion (more cowbell!). But the percussion isn’t part of the composition — it’s not in the sheet music — and so Williams and Thicke were free to copy it. The songs have broadly similar (albeit not identical) bass lines. But the “walking” bass line of the Gaye song is utterly typical of funk music (listen to this 1978 Parliament song for an example). Whatever similarity the two songs share in their bass line is also shared with lots of other songs.

In short, what the “Blurred Lines” team copied is either not original or not relevant.

But as copyright case after copyright case has shown, juries are neither musicologists nor robots. Despite careful instructions from the judge, contrived and stripped down versions of the two songs produced by experts, and even some improvised courtroom playing by Thicke, the jury seemed to have ultimately decided that the songs were just too similar not to give the Gaye family a piece of the earnings. And it probably helped that the earnings were big enough that there was plenty to go around: “Blurred Lines” raked in tens of millions of dollars in its run at the top.

As a matter of basic fairness the jury’s decision may make some sense. Maybe Marvin Gaye, having supplied some crucial inspiration for “Blurred Lines,” should have just been given a share of the money the song took in. But to say that Williams and Thicke broke the law is another thing altogether.

And we can’t stress this enough: Basic fairness is not the goal of our copyright system. The reason we have copyright — the reason we protect songs, books, and other creative works for the life of the author plus 70 more years — is to adequately incentivize artists to produce new creative works. Copyright, at bottom, is about ensuring the flow and growth of culture. We encourage new creations by making sure creators know they stand to reap the benefits. As the Supreme Court said in the 1984 decision that legalized the home recording of copyrighted movies and television programs, copyright is “a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors.”

The “Blurred Lines” ruling, unfortunately, turns this principle on its head. Rather than motivate creation, it squelches it. Why? Because the jury’s verdict casts a huge shadow over musical creativity and takes what should be familiar elements of a genre, available to all, and privatizes them. Copyright lawyers use the phrase “scènes à faire” to refer to stock elements in a genre that cannot be the subject of a copyright claim, precisely because they are so essential an element of the genre. So a story involving wizards might include beards, pointy hats, and funny names. None of that is copyrightable, and hence the estate of J.R.R. Tolkien could not, and did not, sue J.K. Rowling.

Until this week, this principle was also thought to protect the broad style and feel of a song. This was especially important since music copyright law has, in recent years, pushed so hard in the direction of banning explicit sampling — even to the point of declaring in one notorious case that copying just three notes was sufficient for infringement.

So in the wake of “Blurred Lines,” musicians face a daunting task. They not only have to fear unintentionally copying three notes. They also have to fear that some other, maybe older or even dead musician, will challenge their great new song on copyright grounds just for incorporating some similar — and maybe very familiar — musical elements.

And contemporary music is full of acts that strongly draw on or reference the sound and feel of other acts. After the decision in “Blurred Lines,” the catalogs of artists like Foxygen, which as Pitchfork points out draws on the Rolling Stones, Lou Reed, and the Kinks, are seemingly fair game for legal action. Will Joy Division sue Interpol? Will Crosby, Stills and Nash sue Mumford and Sons? And so on.

We don’t know, and we hope not. But we do know one thing for sure. The “Blurred Lines” verdict is terrible news for musicians and fans of music. It is, however, great news for copyright lawyers.