The encase is significant for a number of reasons. In typical music copyright cases—at least successful ones—the two works share the same ( or at least a alike ) sequence of pitches, with the lapp ( or at least exchangeable ) cycle, set to the like chords. The Blurred Lines encase was unique, in that the two works at consequence did not have similar melodies ; the two songs did not even plowshare a single melodic idiom. In fact, the two works did not have a sequence of even two chords played in the same order, for the same duration. They had wholly different sung structures ( meaning how and where the poetry, choir, etc. are placed in the song ) and did not partake any lyrics any .
The verdict in this case—assuming ( possibly naively ) that it was based upon the music at all, [ 2 ] and not, for model, the jury ’ s dislike for Robin Thicke and his admit drug use—was no doubt based upon a percept that the overall “ feel ” or “ furrow ” of the two works is similar, as songs of a especial music genre much are. In effect, Williams and Thicke have been found liable for the violation of an mind, or a series of ideas, and not for the tangible expression of those ideas, which is antithetic to Section 102 ( boron ) of the Copyright Act. [ 3 ] such a result is identical dangerous to the music community and is sealed to stifle future creativity .
All music shares inhalation from prior melodious works, specially within a particular musical writing style. The import of the Blurred Lines case is, consequently, that songwriters can now be punished for creating new music that is merely inspired by anterior works. By eliminating any meaningful standard for drawing the note between permissible inspiration and improper imitate, the verdict is certain not entirely to impede the creative process and stifle future creativity, it ultimately does a disservice to past songwriters as good and adversely affects the entire music industry. The police, and specifically the captive behind the Copyright Act, would be much better served if the courts could provide clearer rules so that songwriters could know when the line is crossed, or at least where the line is.
I. DISTRICT COURT’S DENIAL OF SUMMARY JUDGMENT
just prior to trial, the zone court denied Williams and Thicke ’ s motion for compendious judgment based upon the declarations of two musicologists submitted by the Gayes, which were filled with pilfer theories, identifying certain distant, apparently unrelated, factors of alleged similarity. [ 4 ] The motor hotel dismissed—simply as “ issues of fact ” —the multitude of dissimilarities in the two works that were identified by Williams and Thicke ’ s musicologist—including distinct, material differences in the actual melodies of the two songs .
Because “ Got to Give it Up ” was a pre-1978 composition and was recorded anterior to 1972, the Court properly limited the Gayes ’ proof to include merely the deposit copy of the sail music that was presented to the U.S. Copyright Office upon registration by Marvin Gaye ’ s publisher and did not allow the jury to hear the entire strait recording. however, immediately following this rule, the court systematically and wholly emasculated the rule in the following significant ways :
- After the court had ruled on summary judgment that “Theme X” (a four-note melody) was not on the deposit copy, the court allowed the Gayes’ musicologist to testify that her “Theme X” was different from the court’s “Theme X,” and that her “Theme X” was implied in the deposit copy (as was much of the music that was contained in the sound recording).
- The court allowed the Gayes’ musicologist to further testify that although the keyboard part in “Got to Give it Up” similarly was not in the deposit copy, “professional musicians would understand” to play the keyboard part as she transcribed it—and that keyboard part was the “heartbeat” of “Got to Give it Up.”
- The court allowed the Gayes’ musicologist to use a transcription of the bass part from the sound recording that was different than the bass part on the deposit copy.
- The court allowed the Gayes’ musicologist to use sound bites from both works to show a “total concept and feel,” while in actuality compounding the issue with an instruction to the jury to disregard the actual clips and only to consider the musicologist’s “opinions.”
- The court allowed the Gayes’ musicologist to present a “mashup” of the two works, which was prepared after the close of expert discovery, and which included the bass and keyboard elements (that were not in the deposit copy)—while excluding mashups that were prepared by Williams and Thicke’s musicologist between “Got to Give it Up” and numerous old soul songs and many pop songs that could be played over the same four chords.
- The court allowed a lay witness who was in charge of the Marvin Gaye catalogue at Marvin Gaye’s record label (which also happened to be Robin Thicke’s record label), who does not even know how to read music, to testify that he listened to “Blurred Lines,” and thought that it was similar to the “Got to Give it Up” sound recording.
At the same time, the district motor hotel excluded evidence that Marvin Gaye ’ s own publisher powerfully believed that there was no violation. One of the functions of a music publisher is to police the copyrights of the songs in its catalog, to assess whether or not its songwriters ’ music has been infringed, and to commence litigation against the infringers .
In this case, according to Marvin Gaye ’ second publisher, EMI/Jobete, as stated in the Joint Rule 16 ( boron ) Report, EMI/Jobete
first internally analyzed whether ‘ Blurred Lines ’ was an violation of ‘ Got To Give It Up ’ and determined that there was no misdemeanor. Thereafter, Jobete secured the opinion of an adept musicologist who similarly concluded that there was no basis for a claim of misdemeanor. Jobete punctually reported its determinations to Frankie and Nona Gaye ’ sulfur representatives. .. . further Jobete advised that it could not, in dependable religion, bring violation claims ( either for ‘ Got To Give It Up ’ or for ‘ After The Dance ’ [ another song that the Gayes claimed was infringed by Williams and Thicke ] because its psychoanalysis, including technical analysis confirmed that neither work had ben infringed by Blurred Lines. .. . Jobete advised that, coherent with Rule 11 of the Federal Rules of Civil Procedure, it therefore could not and would not either defend Frankie and Nona Gaye [ in Williams and Thicke ’ s declarative stand-in action ] or pursue the misdemeanor claim they demanded. [ 7 ]
ultimately, the Gayes actually sued EMI/Jobete for not pursuing the misdemeanor claim against Williams and Thicke. [ 8 ]
II. INFRINGEMENT OF AN IDEA, WHICH IS NOT COPYRIGHTABLE
It appears that the jury in this encase was persuaded by a number of factors, including the forfeit similarities that were extraneous to the sheet music, interviews given by Robin Thicke, the number of musicologists that each side had ( Gayes : two ; Williams and Thicke : one ), and the bias lie witness impression. not one of these factors had anything to do with any perceived similarity in pitch, cycle, or chords, and not one of these factors constituted a proper footing for a discover of copyright misdemeanor .
A result such as this, in which the melodies are not even close to being similar, is identical dangerous, in that it does not distinguish between an idea and the formula of that idea, nor does it distinguish between the charm of a harbinger ’ south music and the unlawful replicate of that music. The built-in risk of such a result is that, without drawing a proper occupation between what is an theme and what is an expression or between what is an charm and what is an misdemeanor, future songwriters do not know whether their “ influence ” is going to land them with the adjacent reach read or land them in court—or both, as demonstrated in this character .
much has been said about Williams ’ mho and Thicke ’ s apparent ability to afford to fund a character like this. Whether or not Williams and Thicke are able to afford to defend this lawsuit and pay a judgment, most of the musicians in the earth are not in a position to do so. clearly then, when a budding songwriter is contemplating the musical composition of a song, it is axiomatic that he or she is going to think twice earlier he or she writes a song that “ feels ” like a Marvin Gaye song or any early artist ’ second sung, always with one animal foot in the record studio apartment and one foot in the court. This is an indefensible situation that most surely will not foster uninhibited creativity .
III. THE NINTH CIRCUIT DECISION
Devastated by the effect that the verdict would have on future songwriters and the music industry in general, Williams and Thicke appealed the font to the Ninth Circuit Court of Appeals. The Ninth Circuit—in a 2-1, very drawn-out decision, [ 9 ] written by Judge Milan D. Smith Jr.—affirmed the majority of the zone motor hotel ’ randomness decision and ignored the cries of the 212 Amicus songwriters ( and dissenting evaluator Jacqueline H. Nguyen ). The majority asserted that its entire decisiveness was about specialize procedural matters and concluded its decision by stating that : “ [ degree fahrenheit ] arkansas from heralding the end of musical creativity as we know it, our decision, even construed broadly, reads more accurately as a cautionary fib for future test rede wishing to maximize their odds of success. ” [ 10 ]
At the heart of the attract was the emergence of whether the copyright protection enjoyed by the Gayes was limited to the sheet music of “ Got to Give it Up ” that was deposited with the U.S. Copyright Office, or whether the jury could hear the sound recording as well.Williams and Thicke had successfully argued to the district court that because the Gaye sung was created under the Copyright Act of 1909, the jury should not get to hear the sound record. The Gayes ’ lawyer argued at the zone court and at the Ninth Circuit that their proof should not be then circumscribed. On appeal, Williams and Thicke ’ s lawyer argued that Judge Kronstadt erred by initially restricting the Gayes ’ proof to the situate copy but then allowing in bits and pieces of the sound recording through the testimony of the handsomely paid musicologist, Judith Finell .
The majority noted that Williams and Thicke ’ mho situation that the scope of the Gayes ’ copyright was limited to the lodge copy did not appear to be specifically supported by any character police until the district court ’ randomness rule. however, the woo decided to avoid the issue wholly : “ however, because we do not remand the case for a new test, we need not, and decline to, resolve this topic in this impression. ” [ 11 ]
The Court did affirm that the district court had delicacy to allow testimony from both of the Gayes ’ music experts, which Williams and Thicke ’ mho lawyers claimed to have improperly incorporated opinions about the similarity of the sound recordings, notwithstanding its earlier restriction of proof to sheet music .
In reaction to Williams and Thicke ’ s affirmation that Judge Kronstadt mistakenly denied their movement for drumhead judgment, the appellate court determined that the defense of compendious judgment, after a complete trial on the merits, is not reviewable unless the consequence is one of pure law. The court determined that this was not such a case : “ The zone court ’ s application of the extrinsic trial of similarity was a fact bound inquiry far afield from decisions resolving ‘ disputes about the message and clearness of preexistent law. ’ The zone court ’ s ruling bears short resemblance to legal issues we have reviewed pursuant to our exception. ” [ 12 ]
With deference to Williams and Thicke ’ s claim that the zone court should not have allowed certain portions of the testimony of the Gayes ’ musicologists, the court pointed out that Finell “ was impeached with her deposition testimony, in which she admitted that the rhythm of the keyboard parts in the sound recording of ‘ Got To Give It Up ’ is not notated in the deposit transcript. ” [ 13 ] The motor hotel far noted that Williams and Thicke ’ s technical disputed her testimony and that the whole thing “ boiled down to a wonder of whose testimony to believe, ” which was the horizon of the jury. [ 14 ] ultimately, the motor hotel ruled that the verdict was not against the clear weight unit of the evidence .
The Blurred Lines decision was indeed a procedural one and is on identical narrow-minded grounds. The court held that the jury ’ s verdict was not against the open weight of evidence and refused to disturb or “ second guess ” the jury ’ s fact-finding at trial. The court concluded that the district court did not abuse its discretion in denying Williams and Thicke ’ s gesticulate for a new test. [ 15 ]
even Williams and Thicke ’ s competition that the damages were excessive was met with a strictly procedural reaction. The jury had awarded the Gayes 50 % of the print gross from “ Blurred Lines ” as actual damages, which amounted to approximately $ 3.2 million. The court ruled that the Gayes ’ expert testimony in that regard was not bad and, therefore, affirmed the sum. similarly, the court determined that the jury ’ s verdict awarding profits to the Gayes of $ 1.8 Million against Robin Thicke and $ 375,000 against Williams was “ not clearly erroneous, ” nor was the continuing 50 % royalty pace. [ 16 ]
The motor hotel did take exception to the zone court ’ s treatment of T.I. and the Interscope parties, but that was on adjective grounds arsenic well. The jury had rendered a general verdict in favor of T.I. and the Interscope parties, finding ( albeit inconsistently ) that neither had violated the Gayes ’ copyright. The district court disregarded the jury ’ s verdict in that see and brought them back into the case .
The Ninth Circuit ruled that the Gayes waived their challenge to the consistency of the jury ’ sulfur verdict in this respect by not asserting their position at trial before the jury was discharged. The court went on, however, to rule that, evening if the Gayes had by rights preserved their challenge, “ neither Federal Rule of Civil Procedure 50 ( b ) nor our decisions in Westinghouse and El-Hakem v. BJY Inc. conferred assurance on the district motor hotel to upset the jury ’ south verdicts in this casing. ” [ 17 ] The court far noted that “ no attest showed Harris was vicariously apt. ” [ 18 ]
The majority, by focusing on the adjective aspects of the case, minimized the precedential rate of the appeal itself, ignoring the potentially catastrophic ramifications of the case as a whole. This cavalier dismissal by the majority precipitated a blister disagree by Judge Jacqueline Nguyen and an actual rebuttal to the dissent by the majority .
Judge Nguyen writes : “ The majority allows the Gayes to accomplish what no one has before : copyright a musical stylus. ” [ 19 ] She states far that : “ ‘ Blurred Lines ’ and ‘ Got to Give It Up ’ are not objectively like. They differ in melody, harmony, and cycle. Yet by refusing to compare the two works, the majority establishes a dangerous precedent that strikes a devastating blow to future musicians and composers everywhere. ” [ 20 ]
With respect to the expert musicologists, the disagree goes on :
While juries are entitled to rely on properly supported technical opinion in determining substantial similarity, experts must be able to articulate facts upon which their conclusions—and thus the jury ’ s findings—logically trust. here, the Gayes ’ expert, musicologist Judith Finell, cherry-picked brief snippets to opine that a “ configuration ” of individually unprotectable elements in both pieces of music made them well exchangeable. That might be fair if the two constellations bore any resemblance. But Big and Little Dipper they are not. The only similarity between these “ constellations ” is that they ’ re both compositions of stars. [ 21 ]
Judge Nguyen then picks up on a composition that was forefront in the 212 Songwriters, etc. Amicus Brief, and that was that it is axiomatic that copyright laws do not protect ideas, but only the construction of ideas. In the Blurred Lines case, the entirely similarities that exist between the two compositions is the “ idea ” of, for model, clapping hands, yells, unlike instruments, etc .
Judge Nguyen goes on to challenge the majority to explain which elements of “ Got to Give It Up ” were protectable. She besides does not believe in the “ sliding scale ” of access vs. similarity, in other words, the more entree can be proved, the less substantial the similarity that is required. The majority adopted the inverse proportion rule, which was designed for cases with limited access—essentially, the less probable the entree, the more similarity that is necessity to prove “ imitate. ” [ 22 ] Judge Nguyen does not believe that, with undisputed access, the extent of similarity necessary to fulfill a plaintiff ’ s burden of proof basically dwindles down to nothing. [ 23 ]
In reception, the majority strikes back, express :
[ T ] he dissent prophesies that our decision will shake the foundations of copyright jurisprudence, imperil the music industry, and stifle creativity. It even suggests that the Gayes ’ victory will come back to haunt them, as the Gayes ’ melodious compositions may now be found to infringe any number of celebrated songs preceding them. respectfully, these conjectures are baseless hyperbole. Our decision does not grant license to copyright a melodious expressive style or “ groove. ” Nor does it upset the libra Congress struck between the exemption of aesthetic formula, on the one hand, and copyright protection of the fruits of that construction, on the other hand. rather, our decision hinges on settle adjective principles and the limited nature of our appellate review, dictated by the particular model of this character and controlling copyright law. Far from heralding the goal of melodious creativity as we know it, our decisiveness, even construed broadly, reads more accurately as a admonitory narrative for future trial advocate wishing to maximize their odds of success. [ 24 ]
A. The Denial of Rehearing En Banc
After their appeal to the Ninth Circuit failed, Williams and Thicke filed a prayer for an en banc relistening of the event. Judge Nguyen was the sole judicial advocate of en banc review, which was therefore denied .
IV. ALL MUSIC IS INSPIRED BY OTHER MUSIC
From clock immemorial, every songwriter, composer, and musician has been inspired by music that came before him or her. even one of the musicologists for the Gayes admitted that, with obedience to music : “ All composers share devices and building. ” This is specially so within a particular musical writing style. virtually no music can be said to be 100 % newly and original .
David Bowie was influenced by John Coltrane, Velvet Underground, and Shirley Bassey, among others. [ 25 ] Lady Gaga was influenced by David Bowie, Elton John, and Queen, among others. [ 26 ] Elton John was influenced by The Beatles, Bob Dylan, The Kinks, and Elvis Presley, among others. [ 27 ] The Beatles were influenced by Chuck Berry, Cliff Richard, The Beach Boys, and Elvis Presley. [ 28 ] Elvis Presley ’ s musical influences were “ the pop and state music of the time, the gospel music he heard in church and at the nightlong gospel sings he frequently attended, and the black R & B he absorbed on historic Beale Street as a Memphis adolescent. ” [ 29 ]
Marvin Gaye, himself, was reportedly influenced by Frank Sinatra, Smokey Robinson, Nat “ King ” Cole, Sam Cooke, Ray Charles, Bo Didley, and James Brown. [ 30 ] In fact, “ GotTo Give It Up ” was obviously inspired by Johnnie Taylor ’ s song “ Disco Lady. ” [ 31 ]
One can only imagine what our music would have sounded like if David Bowie would have been afraid to draw from Shirley Bassie, or if the Beatles would have been afraid to draw from Chuck Berry, or if Elton John would have been afraid to draw from the Beatles, or if Elvis Presley would have been afraid to draw from his many influences. presumably, it would besides be difficult for the Gayes to imagine if their father had been afraid to draw from Ray Charles or Bo Didley. Quite plainly, if an artist is not allowed to display his or her musical influences, for fear of legal reprisal, there is very little new music that is going to be created, particularly with the limitations that already naturally exist in songwriting .
V. MUSIC COPYRIGHT CASES NEED A BRIGHT LINE TEST
In the world of film, television, and books, the universe of choices is inexhaustible. One can write about the past, the salute, or the future ; one can write about things that actually happened, things that one wished had happened, or things that could never happen—there is absolutely no limit beyond the author ’ s imagination .
so far, notwithstanding those unlimited options, there is reasonably of a bright credit line test for misdemeanor ( and for obtaining summary judgment ) in the film/television/book world that does not exist in the music universe. With a film, an expert conducts the extrinsic test by comparing the plots, sequence of events, characters, theme, mood, and pace of the two works. The adept besides filters out all of the scènes à faire, such as a car chase in an action movie or a magician pulling a rabbit out of a hat .
A motion for drumhead judgment in such cases will weed out the protectable elements from the unprotectable elements. It will then demonstrate how the works are different with regard to protectable elements, and how any perceive similarities are based upon banal, unprotectable elements. The “ linguistic process ” spoken by the experts is typically one that the pronounce understands and can articulate freely .
In music, unlike film, and so forth, however, there is a “ limited number of notes and chords available to composers, ” and composers are therefore much more restrict in their options. [ 32 ] There are literally twelve notes per octave, and not all of those notes can be used in the same sung. As Judge Learned Hand once wrote : “ It must be remembered that, while there are an enormous number of possible permutations of the musical notes of the scale, merely a few are pleasing ; and much fewer hush suit the infantile demands of the popular ear. Recurrence is not consequently an inevitable badge of plagiarism. ” [ 33 ]
yet, notwithstanding the severe actual and virtual limitation of choices in music cases, the cable drawing that exists in film copyright cases does not appear to exist in music cases. Musicologists speak a speech that is frequently foreign to judges ( and juries ), and therefore confuse judges into denying summary judgment motions whenever two musicologists disagree. [ 34 ] There appears to be no easy direction, no bright trace, to determine in music cases—and it was surely not done in this case—the difference between creating the same “ palpate ” or “ expressive style, ” [ 35 ] and infringing a copyright. [ 36 ]
This is particularly then when a plaintiff can hire three, four, or five musicologists, conflict out three of them that find no similarities between any protectable elements, and know that, flush if he only has one musicologist that can argue a event for misdemeanor, he will avoid summary judgment. This is precisely what happened in the Blurred Lines shell. There were two or three musicologists that were initially consulted, rendered strong opinions of non-infringement, and ultimately were conflicted out of the case. [ 37 ]
VI. COPYRIGHT LAW SHOULD STIMULATE, NOT STIFLE, CREATIVITY
The “ ultimate calculate ” of the Copyright Act is “ to stimulate artistic creativity for the general public good, ” and most musicians applaud and appreciate that enterprise. [ 38 ] however, they besides understand that, like the music that was created before them, their own music will serve as build blocks for future songwriters, who will create their own music. As discussed in Fogerty v. Fantasy, Inc., “ copyright assures authors the correct to their original formulation, but encourages others to build freely upon the ideas and information conveyed by a cultivate. ” [ 39 ]
As written by Peter Alhadeff and Shereen Cheong in the Berklee College of Music Music Business Journal, “ The Lesson of Blurred Lines, ” quoting an interview with Berklee College of Music professor, Dr. E. Michael Harrington : “ If you ’ re not influenced by Marvin Gaye, there must be something wrong with you. ” [ 40 ] The authors go on to write : “ [ heat content ] einsteinium could fair vitamin a well be talking about James Brown, Chuck Berry, the Beatles, or Michael Jackson—all of them a product of their own influences. Copyright police should make musical creativity flourish, not stifle. ” [ 41 ]
Parker Higgins, conductor of copyright activism at the Electronic Frontier Foundation writes that
[ watt ] hen we say a sung “ sounds like ” a certain era, it ’ sulfur because artists in that era were doing a batch of the same things—or, yes, copying each other. If copyright were to extend out past things like the tune to actually cover the other parts that make up the “ palpate ” of a song, there ’ s no room an earned run average, or a city, or a motion could have a certain sound. Without that, we lose the adjacent disco, the next Motown, the adjacent batch of protest songs. [ 42 ]
last, as written by composer Ron Mendelsohn, owner of production music company Megatrax :
All musical works, indeed all creative works, are born from a spark of inspiration. It is substantive for musicians and composers to be able to find this spark anywhere and everywhere without having to constantly look over their shoulders and worry about being sued. To extinguish this spark, to replace it with concern, is to stifle creativity and deprive company of the adjacent generation of capital artists and newly music. And yes, artists should be able to talk freely about their sources of inspiration without having to worry about their ebullient proclamations being played back as damning evidence in a court of police. [ 43 ]
VII. THE CELEBRATION OF INFLUENCES SHOULD BE ENCOURAGED
Mendelsohn ’ s last detail is an specially important one. In summation to the potential adverse impact that this shell is certain to have on future songwriters, this sheath will have a permanent effect on past songwriters and musicians ampere well. many interviews were played during the trial in which Pharrell Williams and Robin Thicke both expressed that they loved Marvin Gaye, and wanted, as an court to him, to create a birdcall that had the feel of “ Got To Give It Up. ” One might ask if there could possibly be a better bequest for a songwriter than to inspire other songwriters to write music and expressly pay court to him or her for inspiring that music—publicly, on national television and elsewhere, keeping his identify and his music alive for generations to come .
yet there can be no doubt in this case that the jury was swayed, at least in character ( arguably in large separate ), by hearing such interviews. ultimately, the jury held Williams andThicke liable for copyright misdemeanor and rendered an award of several million dollars against them. It is unmanageable to imagine a songwriter that comes along after this case publicly affording any credit to any influence that he or she receives from any songwriter .
It is apparent that the denial of compendious opinion and the ultimate verdict in this case were based upon an undeniable musical inspiration, the overall look and feel of the two works, and a series of random, coincident, and insignificant alleged similarities between unprotectable elements in the sound record of “ Got To Give It Up ” ( random elements that were not in the “ Got To Give It Up ” deposit replicate ) and “ Blurred Lines. ”
many crucial popular songs in the modern earned run average would not exist today if they were subjected to the same scrutiny as “ Blurred Lines ” was in this font. This case, which was based upon such factors—with no similarities in melody, with virtually no similarities with the music notation on the actual deposit copy, and merely based on a “ groove ” —will intelligibly stifle future creativity, will undoubtedly diminish the legacies of by songwriters, and, without a doubt, is antithetic to the principals of the Copyright Act .
[ * ] *. This article was adapted from an amicus curia abbreviated that was filed by the writer on behalf of 212 songwriters, composers, musicians, and producers, in connection with the appeal of the Blurred Lines case to the Ninth Circuit Court of Appeals. See by and large Williams v. Gaye, 885 F.3d 1150 ( 9th Cir. 2018 ) [ hereinafter the Blurred Lines Case ] .
[ † ] †. Edwin F. McPherson is a collaborator at McPherson LLP in Century City, California, specializing in entertainment litigation, intellectual property litigation, and crisis management. He attended much of the trial in the Blurred Lines event, has given numerous lectures on the case, and submitted an amicus curia abbreviated to the Ninth Circuit on behalf of 212 songwriters, composers, musicians, and composers .
[ 1 ]. Though Williams and Thicke were both found liable for copyright violation, T.I. was exonerated by the jury. Although the district court purported to overrule the jury and brought back in T.I. and the Interscope-related entities as defendants, the Ninth Circuit reversed that parcel of the District Court ’ s judgment. The Blurred Lines Case, 885 F.3d at 1182–83 .
[ 2 ]. In the two days in which the jury deliberated, they did not once listen to any of the music .
[ 4 ]. Those theories were difficult adequate ( if not impossible ) for aim musicians to understand ; it is difficult to imagine how the Court could possibly fully grasp their consequence .
[ 5 ]. even to a person with no musical train, the concept of sealed music being implied by certain other music sounds a bite fishy ; however, to anyone with a modicum of musical train, this concept is absurd .
[ 6 ]. similarly, this concept makes no musical sense any .
[ 7 ]. Joint Rule 16 ( bacillus ) report card at 5–6, Williams v. Bridgeport Music, Inc., LA CV13-06004 JAK ( AGRx ), 2016 U.S. Dist. LEXIS 193633 .
[ 8 ]. This illustrates an important ( possibly rhetorical ) motion for the courts and the music world in general. If the executives at EMI/Jobete, whose caper it is to assess copyright claims involving their songwriters, did not believe that “ Blurred Lines ” infringed “ Got To Give It Up, ” and if the expert musicologist that EMI/Jobete hired to assist it in that determination did not believe that “ Blurred Lines ” infringed “ Got To Give It Up, ” and if the lawyer that was hired by EMI/Jobete believed so powerfully that there was no violation that he advised EMI/Jobete that suing Williams and Thicke might very well be a misdemeanor of Rule 11, how in the global could a songwriter, with no experience policing copyrights, no experience as an adept musicologist, and no legal train, determine that his or her own song might be an misdemeanor ?
[ 9 ]. The Blurred Lines Case, 885 F.3d at 1183 .
[ 17 ]. Id. at 1175 ( citing Westinghouse Elec. Corp. v. Gen. Circuit Breaker & Elec. Supply, Inc., 106 F.3d 894 ( 9th Cir. 1997 ) and El-Hakem v. BJY, Inc., 415 F.3d 1068 ( 9th Cir. 2005 ) ) .
[ 19 ]. Id. at 1183 ( Nguyen, J., dissenting ) .
[ 22 ]. Although this convention makes sense in the context of proving “ replicate ” ( access plus significant similarity ), when there is limited or a abject likelihood of access, it is absurd to suggest that, if access is 100 % proved, no similarity any is necessary. furthermore, this “ quiz ” besides ignores the requirement, independent of proof of copying, that protectable elements of the two works must be well similar in order to prove actual violation through the extrinsic screen. In early words, copying alone does not constitute violation if the elements copied are not protectable. There must be solid similarity in copyrightable expression. The inverse ratio principle is so controversial that, in an amended decision, the Ninth Circuit deleted the paragraph from its original impression discussing the rule and its application. Compare The Blurred Lines Case, 885 F.3d at 1163, with Williams v. Gaye, 895 F.3d 1106, 1119 ( 9th Cir. 2018 ) .
[ 23 ]. The inverse proportion psychoanalysis has been criticized and rejected in other jurisdictions. For exemplify, in Arc Music Corp. v. Lee, 296 F.2d 186, 188 ( 2d Cir. 1961 ), the Second Circuit ruled that access will not make up for a miss of similarity, “ and an excessive stress upon that one have can only confuse and flush conceal this basic prerequisite. ”
[ 24 ]. The Blurred Lines Case, 885 F.3d at 1182 ( majority public opinion ) .
[ 25 ]. beginning 1999, Berklee, hypertext transfer protocol : //www.berklee.edu/commencement/past ( last visited Dec. 1, 2018 ) .
[ 26 ]. Sam Stryker, Lady Gaga and the Glam Rock Men Who Inspire Her, Mic ( Nov. 14, 2013 ), hypertext transfer protocol : //mic.com/articles/73263/lady-gaga-and-the-glam-rock-men-who-inspire-her # .YIo314rrY .
[ 27 ]. Neil McCormick, Leon Russell Interview for the Union with Elton John, Telegraph ( Oct. 13, 2013 ), hypertext transfer protocol : //www.telegraph.co.uk/culture/music/rockandpopfeatures/8062253/Leon-Russell-interview-for-The-Union-with-Elton-John.html .
[ 28 ]. Ten Artists and Bands that Inspired the Beatles, Reader ’ s Digest U.K., hypertext transfer protocol : //www.readersdigest.co.uk/culture/music/ten-artists-and-bands-that-inspired-the-beatles ( last visited Jan. 16, 2019 ) .
[ 29 ]. Elvis Presley Biography, Graceland, hypertext transfer protocol : //www.graceland.com/elvis/biography.aspx ( last visited Dec. 1, 2018 ) .
[ 30 ]. Marvin Gaye Influences, Shmoop, hypertext transfer protocol : //www.shmoop.com/whats-going-on/influences.html ( last visited Jan. 16, 2019 ) .
[ 31 ]. See generally Graham Betts, Motown Encyclopedia ( 2014 ) .
[ 32 ]. Gaste v. Kaiserman, 863 F.2d 1061, 1068 ( 2nd Cir. 1988 ) .
[ 33 ]. Darrell v. Joe Morris Music Co., 113 F.2d 80, 80 ( 2nd Cir. 1940 ) ( per curiam ) .
[ 34 ]. What the Gayes ’ musicologists did in this character to avoid compendious judgment ( and ultimately at test ) is the equivalent of an expert in a film case testifying that the word “ end ” was used four times in the first fit of one film and two times in the second gear scene of the irregular film. They might go on to say that the son “ end ” was followed by the words “ of a house ” in the first film, and “ of a truck ” in the moment film, along with an explanation that “ family ” and “ truck ” both have five letters, and many trucks are parked at houses. such testimony would be promptly dismissed, if not laughed at, in a film casing, and the gesture for drumhead sagacity granted. unfortunately, the musical equivalent—which is basically what occurred in this case—is not as slowly to understand and dismiss .
[ 35 ]. music police is farther hampered by the Ninth Circuit ’ sulfur intrinsic test, in which a lie jury is asked to determine the “ sum concept and feel ” of the works in question. Such a trial plainly does not work in a music context. One might argue that virtually every disco birdcall has the like “ sum concept and feel. ” One could argue that every blues song or every pat song has the lapp “ sum concept and feel. ” This notion is antithetic to the reality of musicians ’ inspirations and borrowing and is entirely preventive of creativity .
[ 36 ]. Duke Law School music copyright jurisprudence professor Jennifer Jenkins, after noting that “ Got to Give It Up ” was inspired by Johnnie Taylor ’ randomness sung “ Disco Lady, ” writes that “ Gaye can not claim copyright over material that he himself borrowed. ” As professor Jenkins far discusses : “ Copyright entirely covers ‘ original, creative expression. ’ Anything Marvin Gaye copied directly from his Motown, funk, or disco predecessors is not ‘ original ’ and should be off the table. ” She writes further : “ In addition, copyright ’ randomness “ scènes à faire ” doctrine allows anyone to use the define elements of a music genre or style without infringing copyright, because these build blocks are ‘ indispensible ’ to creating within that genre. .. . many of the musical elements coarse to ‘ Blurred Lines ’ and ‘ Got To Give It Up ’ fall into these unprotectable categories. ” Jennifer Jenkins, The “ Blurred Lines ” of the Law, Ctr. for the Study of the Pub. Domain, hypertext transfer protocol : //law.duke.edu/cspd/blurredlines ( last visited Nov. 1, 2018 ) .
[ 37 ]. This is another drill that should be discontinued. expert witnesses, if they are to maintain any credibility of non-bias any, should be allowed to testify for whatever side they agree with, and not be immediately conflicted out from testifying in favor of the second party/attorney that calls them just because they were second base. The Court could besides retain its own adept ( s ) pursuant to Rule 706 of the Federal Rules of Evidence .
[ 38 ]. twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 ( 1975 ) .
[ 39 ]. Fogerty v. Fantasy, Inc., 510 U.S. 517, 527 ( 1994 ) ( vehemence added ) .
[ 40 ]. Dr. Harrington has analyzed more than 230 of Marvin Gaye ’ s songs and uses his music in classes that he has taught. He agrees that the “ groove ” and “ bounce ” of the two works are like, but is adamant that “ [ oxygen ] bjectively, there is NO protectable expression ( melody, harmony, etc. ) that has been copied by Thicke ” and that “ [ thymine ] here is no imitate of copyrightable construction involving harmonies of the two songs. What is extremely close between the songs is the tempo. .. but tempo is not copyrightable. ” Peter Alhadeff & Shereen Cheong, The Lesson of Blurred Lines, Music Bus. J. ( Feb. 2016 ), hypertext transfer protocol : //www.thembj.org/2016/01/the-lesson-of-blurred-lines ; see besides Dr. E Michael Harrington, Good News for Robin, Katy & One commission : music Copyright Expert Says Nobody ’ s Ripping Off Anybody, E Michael Music ( Aug. 19, 2013 ), hypertext transfer protocol : //www.emichaelmusic.com/good-news-for-robin-katy-one-direction-music-copyright-expert-says-nobodys-ripping-off-anybody.
[ 41 ]. Alhadeff & Cheong, above note 40 .
[ 42 ]. Adam Pasick, A Copyright Victory for Marvin Gaye ’ second Family Is Terrible for the future of Music, Quartz ( Mar. 10, 2015 ), hypertext transfer protocol : //qz.com/360126/a-copyright-victory-for-marvin-gayes-family-is-terrible-for-the-future-of-music .
[ 43 ]. Ron Mendelsohn, Will the “ Blurred Lines ” Decision “ Stifle Creativity ” ?, Megatrax ( Apr. 1, 2015 ), hypertext transfer protocol : //blogtrans.megatrax.com/will-the-blurred-lines-decision-stifle-creativity .