Happy Under Fire?—I Don’t Copy That
“Only one thing is impossible for God: To find any sense in any copyright law on the planet.”
We recently reported on the verdict in the Blurred Lines case (read it here). Clearly, the jury spoke and loudly at that. However, since that verdict two thoughts have been floating around which are worthy of discussion. First, there has been some sentiment in the music community that because of the Blurred Lines verdict that there will be a “chilling” effect on other artists who will be (or should be) concerned about being sued for infringement anytime there is a comparison between two compositions from the same genre. Second, there have been rumors that the Marvin Gaye vs. Pharrell Williams camps were about to undergo Round Two with Williams’ Happy being “mashed-up” to Marvin Gaye’s Ain’t That Peculiar.
As to the latter situation Janis Gaye made a statement refuting rumors Happy was being targeted in a copyright suit similar to the fate of Blurred Lines. Mrs. Gaye said that “this is 100 percent false. We have absolutely no claim whatsoever concerning Happy.” Similarly, although admitting to hearing the mash-ups and observing that the two songs do “sound alike,” Gaye’s daughter Nona also implied that the Gaye clan is moving on.
As to the former situation—that is, the music community’s sentiment that Blurred Lines will bring a “chilling” effect—with all the recent cases on copyright infringement and even the high profile Blurred Lines verdict itself, it pays to revisit and clarify just what is involved and at stake when a copyright infringement action is brought. The point is that infringement is a serious burden that must be proven and it is not necessarily the easiest case to make in a court of law. To succeed in proving infringement the party which alleges that they have been infringed (i.e., the copyright holder) generally has to prove:
That they own the copyright;
That the party which allegedly infringed the work had access to it; and
That there is a substantial similarity between the two works.
As to the “substantial similarity” element, the question is really whether the average lay observer would recognize the alleged copy as having infringed upon the copyrighted work.
Copyright experts have said that determining “substantial similarity” and infringement are the hardest questions to resolve in copyright law. Plus, these are expensive issues to fight and complicated to prove. But that’s not the end of the story. Even if the copyright owner has appeared to have proven his or her’s case for infringement there are mitigating factors and even outright defenses that can perhaps defeat an infringement claim.
For example, in 2004 the Beastie Boys, as part of a sampling, got away with “borrowing” a six-second, three-note segment from jazz flautist James Newton. The Beastie Boys had no sampling license however, the court there ruled for the band finding that although the sequence that was sampled was copyright protected the portion used was so minimal that it was not deemed to be infringing. Despite that ruling however, in the same year another federal court found that a three-note segment that spanned four seconds which appeared in the song 100 Miles was indeed infringing on George Clinton and the Funkadelics’ Get Off Your Ass And Jam.
What the contrast between these cases shows is one more potential obstacle to proving infringement; that the rules are not so clear—either for or against infringement—such that proving infringement is not a simple task. It also appears to be the case that the same rules may not be uniformly applied throughout the country.
What all this adds up to is that a “chilling” effect should not spread throughout the music industry simply because of the Blurred Lines verdict. No doubt that verdict was sensational and dramatic; but, it’s one case and in the minds of a lot of people, the similarities between the songs in Blurred Lines was very readily discerned.
Furthermore, consider some other things about Blurred Lines that were peculiar to that case. One could argue that one of these considerations that made the case for infringement was the great commercial success of Blurred Lines. Had the song gone nowhere it is certainly possible that neither would have the lawsuit against it. That is not to say that greater or lesser commercial success amounts to infringement or non-infringement, if you will, but, in my mind that was probably a factor.
Additionally, remember that the initial suit in Blurred Lines was actually brought by Williams and Thicke—the Gaye clan did not initially file first. Instead, once the Gayes were sued they were basically left with no choice but to countersue for infringement. Again, that does not excuse infringement but often “other” practicalities like this affect a legal action away from what happens in the courtroom.
Finally, and I don’t know about you, but I think that anytime people give interviews in the media and then try to backtrack via the mea culpa highway it’s a problem; that strategy usually doesn’t work. Remember, Thicke previously gave a number of interviews about the creation of Blurred Lines and then at trial he said he was high and drunk when he gave those interviews. Obviously, that kind of explanation didn’t wash with the jury.
In the end, the point is that Blurred Lines should not turn the recording industry or music on its head. It stands as a good reminder that infringement is always a consideration and that’s it’s “out there” when someone chooses how to compose their music. However, the sky is not falling in the creative world and I would dare to say that Blurred Lines is not the doomsday for songwriting. Perhaps a “proceed with caution” motto is the better message; the case should be seen as a yellow light and not a stop sign. Otherwise, a complete halting to creativity would not make me Happy.
KEN “K BO” BIEDZYNSKI