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WHEN A ‘VIBE’ BECOMES A COPYRIGHT ISSUE

WHEN A ‘VIBE’ BECOMES A COPYRIGHT ISSUE

 

– By Jack Greiner – 5-9-17

Copyright litigation seems to have become as much a part of popular music as groupies. In the last few years we’ve seen squabbles between Tom Petty and Sam Smith (“Won’t Back Down” vs. “Stay with Me”); Spirit and Led Zeppelin (“Taurus vs. “Stairway to Heaven”) and Ed Townsend and Ed Sheeran (“Let’s Get it On” vs. “Thinking Out Loud”).

 

In this Dec. 6, 2013, photo, Robin Thicke, left, and T.I. perform “Blurred Lines” at the Grammy Nominations Concert Live! in Los Angeles. The heirs of Marvin Gaye sued Thicke and Pharrell Williams for copyright infringement claiming “Blurred Lines” copied Gaye’s hit “Got to Give it Up.” (Photo: AP file)

The case that’s probably gotten the most publicity, though, has been the fight between the heirs of Marvin Gaye and Robin Thicke/Pharrell Williams over the verdict finding the mega-hit “Blurred Lines” violated the copyright of Marvin Gaye’s “Got to Give it Up.” The jury in that case awarded $5.3 million to the Gaye heirs.

Not surprisingly, Thicke and Williams have appealed the verdict to the U.S. Court of Appeals for the Ninth Circuit. And while hip music fans no doubt are interested in the verdict, the outcome may have ongoing consequences for decidedly unhip intellectual property lawyers across the United States.

A fundamental question in the Blurred Lines case – and one that could affect similar cases for years to come – is what exactly is protected by copyright? Lawyers for the Williams/Thicke side believe the only thing protected is the song’s sheet music. “Got to Give it Up” was published prior to 1972. As such, under the Copyright Act in effect at the time, the sound recording was not protected.

In this Dec. 6, 2013, photo, Robin Thicke, left, and T.I. perform “Blurred Lines” at the Grammy Nominations Concert Live! in Los Angeles. The heirs of Marvin Gaye sued Thicke and Pharrell Williams for copyright infringement claiming “Blurred Lines” copied Gaye’s hit “Got to Give it Up.” (Photo: AP file)

When compared side by side, the sheet music for the two songs doesn’t seem all that similar. Indeed, the “hooks” for the two songs differ in pitch, rhythm, chords, harmonies and lyrics. In the view of the Williams/Thicke side, that should end the case right there.

The Gaye family brought in experts at the trial, however, who based their opinion that the songs were similar due in part to the fact that the sound recordings sounded similar. On appeal, Williams/Thicke argue the trial court erred by allowing the jury to hear that testimony.

Played side by side the songs do sound alike. Both feature a distinctive bass line that blends into falsetto vocals. As the Gaye family contends, the “vibe” is the same. And Williams and Thicke had made comments in the press about being inspired by Gaye’s song. Thus, the Gaye family argues on appeal that even if Thicke and Williams didn’t purposely copy Gaye’s song, they “subconsciously” copied it.

There is no bigger Marvin Gaye fan than me. But I am rooting for the Williams/Thicke side here. Artists are constantly inspired by the styles they see and hear. Think Bruce Springsteen wasn’t inspired by Bob Dylan? And how many artists have been inspired in turn by Springsteen? No one should be able to blatantly copy another artist’s work. But conversely, no artist can lay claim to a “vibe.” And the Copyright Act was not enacted to protect it.

Jack Greiner is a lawyer with the Graydon law firm in Cincinnati and represents Enquirer Media in First Amendment and media issues.

 

 

Source:  http://www.cincinnati.com/story/money/2017/05/09/when-vibe-becomes-copyright-issue/101343932/

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