Blurrred Lines

I have been trying to write something cogent about the “Blurred Lines” verdict since last week.  Several clients and students have asked me my opinion.  Admittedly, I really did not pay too much attention to the case, except to watch that video (for research purposes of course) and play the great American parlor game of listening to the song “Blurred Lines” and “Got to Give It Up” back to back like a Monday morning musicologist.

            I have read lots of commentary on the verdict from a host of experts, who all have differing opinions as to why the jury was wrong.  Most believe that the case will not survive appeal, or will be settled and disappear.

            I personally hope that a great legal journalist like Stan Soocher can get hold of the transcript, talk to the key players and tell us what really happened, because procedurally the case is fascinating. 

            I can’t help but think that there must be something there. Otherwise the case would not have survived summary judgment (the pre-trial procedure whereby a moving party seeks to establish that there are no genuine issues of material fact at issue). 

            It seems that once the case moved beyond that phase and into the hands of the jury then there were multiple possible outcomes.  The most fascinating thing I read all week was an interview with the Marvin Gaye Estate lawyer Richard Busch (a member of the Nashville Bar) in the Hollywood Reporter where he detailed in very specific terms the reasons why he thinks he won the case.  I believe that at the end of the day the plaintiffs were able to convince the jury of the substantial similarity of the two works and this prevailed over the defendant’s insistence that there were “note per note differences” between the two songs.  As Busch states in the interview “this was a straight up copyright claim over compositional elements that we believed had been taken.”  Interestingly, Busch highlighted the assistance of two musicologists he employed as expert witnesses, Judith Finell and Ingrid Monson.  I am sure that their testimony was extremely important to the jury, as were the apparent inconsistencies in the testimony of Robin Thicke and Pharrel Williams. Something must also be said for the fact that Thicke and Williams essentially started the lawsuit by filing a declaratory judgment action against the Gaye Estate (seeking a court judgment that there was no copyright infringement).  I can’t help but believe that this strong arm tactic must have had some effect on the jury.

           

            Will the case have the “chilling effect” on creativity that many commentators are concerned with?  Will it encourage a rash of lawsuits from aggrieved composers and artists now emboldened by this decision?  I don’t really think so. I think that as Busch said, this was a straightforward case of copyright infringement and the plaintiffs did a better job of proving their case.If the jury went too far then  I think that this is going to be an important case to watch on appeal.

Marvin Gaye's Contributions to Domestic Relations Law

Music and law often interact in interesting ways.  Lately, I have been thinking about a record that for whatever reason had a big impact on me thirty years ago – Marvin Gaye's Here My Dear a double-album released at the end of 1978.

                What I had nearly forgotten was the fact that the album was designed by Gaye and his attorney as part of a divorce settlement with his first wife (Berry Gordy's sister) Anna.  Ostensibly, because Marvin could not afford to pay alimony or child support he and his attorney came up with the concept of assigning the royalties from his next album  to his former spouse – and like the great artist he was, Marvin took the concept and ran with it.  Many artists have done "break-up" albums (David Allen Coe, Bob Dylan and Bryan Ferry come to mind) but Marvin Gaye traces the entire course of a relationship from beginning to painful end.  All of this is contained in one of the most over-the-top sleeve designs of the '70's.  The album also contains one of the great romantic couplets of all time:  "Somebody tell me please, why do I have to pay attorney's fees?".

                Marvin Gaye was a troubled soul but a genius whose career was tragically cut short.   His contributions to music are legendary; it is nice to be able to note his singular contribution to family law.