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.

Don't Mess With Lessig

Lawrence Lessig is not the kind of guy you want to piss off.  Lessig, a Harvard law professor, is one of the world's leading experts in copyright law; more to the point he is one of the pre‑eminent thinkers in the ever-expanding area of fair use and intellectual freedom. 

Lessig recently gave an online lecture and used part of the song "Liztomania" by the band Phoenix to illustrate a point about dance music and global Internet phenomenons. The lecture was posted on You Tube.  Liberation Music, an Australian company sent Lessig a letter claiming copyright infringement and threatening to sue for violating its exclusive rights. They apparently also sent a takedown notice to You Tube, under the DMCA provisions.  Lessig neither ignored the letter nor did he bother to send a reasoned response outlining his position.  He instead filed suit asking for a declaratory judgment that his use was a protected fair use.  He is asking for damages and legal fees

Lessig's suit is one of what appears to be a growing number of copyright cases using the concept of "copyright abuse" to challenge what might be accepted norms in copyright law.  To be sure, few would disagree that Lessig's use of the song in an academic lecture is almost certainly fair use; it's right there in the statue.  What is more interesting is that Lessig is using the courts and assuming the role of plaintiff to prove his point.  Robin Thicke has done the same thing with his lawsuit against Bridgeport Music and the Estate of Marvin Gaye, filed in response to their claims of copyright infringement with his song “Blurred Lines”. The Lessig case, if it goes to trial, may help academics gain a better understanding of what is permissible in the area of fair use and scholarship.  It might also give copyright owners pause before sending cease and desist letters and sending take down notices to YouTube and other outlets.