Living In the Thicke of the Marvin Gaye Verdict

Moses Avalon

The verdict is in– $7.3 million dollars for plagiarizing a bass and drum groove. It’s a staggering judgment and it’s not over. Robin Thicke and Pharrell Williams will have to indemnify their publishers for this amount plus lawyers’ fees for having the audacity to be a Marvin Gaye fan. In addition, the real pain is about to begin in the form of injunctions, future profits, lawsuits in other territories, and the public bitch slapping these two artists are going to deal with over the next five years. And worst yet—every artist must now live in the shadow of this decision.

What can creatives learn? Don’t steal? Well, that hardly seems to apply, especially when what this case boiled down to was the sound of the Gaye recording, Got to Give it Up, featuring a somewhat similar bass line. A bass line and a general beat has never been considered part of a composition’s copyright. Otherwise, the Bob Marley estate would have a suit against every Reggae song in the world.

I asked veteran music lawyer, Matt Greenberg, his thoughts about the verdict. He said the jury, “appears to have found infringement on the basis of what are generally non-protected elements and perhaps were influenced by the optics of the case.” In other words, the personalities of the defendants; their fame, social habits and hubris versus the legacy of a beloved artist, Marvin Gaye and his grieving family.

That hubris might have been truncated if Thicke’s lawyers had reviewed a chapter in my book, Confessions of a Record Producer, called, The Myth of Copyright Protection, which has been referenced in dozens of articles and music business curriculums. In it, I outline several cases that seemed like slam dunk winners for plaintiffs but fell on deaf ears due to the lack of a jury’s ability to tell (or counsel’s inability to communicate) the difference between the two copyrights that embody a track: composition (lyrics and melody) versus sound recording (the recording of the musical beats).

The case that came to mind and which I tried to mention in my interview on FOX news this week was the Tommy Page 1992 suit brought by Percy Sledge for, I’ll Be Your Everything, where a jury found no infringement because despite the two songs’ blatant similarities, Sledge’s lawyers failed to prove one very important part of the equation for an infringement suit—access. You must prove access to the original material. In Page’s case, even though the Sledge song was a #14 hit on Billboard, Page claimed he had never heard the song. He claimed that his song–by the same title–which uses the same opening lyric and same melody line– was coincidence.  A jury bought it because Page said “God was my inspiration.”

However, in this week’s case with Pharrell/Thicke, God was not involved but Thicke’s drug use. His access was conceded when he admitted in a GQ interview to conspiring with Pharrell while  high when he said, “Damn, we should make something like [Got to Give it Up].”

In light of such a blatant confession, why Thicke’s lawyers didn’t offer a more aggressive settlement prior to jury deliberations is beyond me. Possibly no one could have anticipated a verdict this large.  Maybe one lesson to be learned is an old one about glass houses: if you’re going to be arrogant and “borrow” from masters (and everybody does in this business)—don’t brag about it in main stream press.

And the lesson to the lawyers—if your client is an ass, don’t count on the jury taking the time to understand arcane nuances between the sound of a groove and the melody of the song.

Another veteran music lawyer, Neville Johnson said to me in an email, “Thicke and Williams were horrible witnesses and sank their own ship. It’s not the end of the world for composers, if anything, it will prevent future infringements and promote innovation and creativity.”

In Pharrell/Thicke’s defense my gut tells me they had, at best, a only a vague idea that they did anything wrong. In today’s creative music environment, with EDM and liberal use of sampling it’s no wonder artists are confused as to what is and is not allowed. The case law is confusing and even the top lawyers will often tell you that only eight people in the world can tell you if you stole a song— and they are called a civil jury.

Interesting math note: at 9.1 cents a copy (the compulsory statutory rate for a cover song) and 7.1 million copies sold domestically, it would have been far, far cheaper for Thicke and Pharrell to err on the side of respect and give Gaye full credit.

Mo out

24 responses to “Living In the Thicke of the Marvin Gaye Verdict”

  1. wallace says:

    The jury decision in the “Blurred Lines” case will probably be overturned on appeal as a matter of copyright law. In modern popular music it is understandable that current artists are effectively midgets standing on the shoulders of giants in order to reach new heights… and some similarities are bound to appear in the new works so created. However, when it comes to the particulars and technicalities of copyright law, emotions (particularly envy and jealousy) are usually not well-suited to reaching a correct resolution (and that applies to the jury as well as the many public opinions that abound on this case).

    To date, this “Blurred Lines” decision is the only copyright infringement lawsuit ever in which no specific melody, harmony, rhythm or lyrics were copied. The “that songs reminds me of another song” threshold would be a new legal standard. If this is the new threshold for copyright infringement, a lot of modern artists (like Bruno Mars) and 60s British artists (from the Beatles to Led Zeppelin) could be in trouble!

    http://wallacecollinsentertainmentlawblog.blogspot.com/2015/03/blurred-lines-decision-could-be.html

    • Jay says:

      It’s very difficult to get a jury finding of substantial similarity reversed on appeal. See the Bolton decision, which is one that seems close to this to me. Yes, in that case the songs shared the same (uncopyrightable) title, but otherwise sounded pretty different. I think one problem here is the “total concept and feel” instruction to jurors on intrinsic substantial similarity. That phrase is terribly unfortunate, among other reasons because there’s clearly no copyright in “concepts” and “feels”, “total or not. And unfortunately, courts outside the 9th Cir. have referenced that approach.

      • Moses Avalon says:

        Wouldn’t that be in the judge’s instructions to the jury and therefore reversable error?

        • David Parker says:

          Hi Jay, I am glad I am not alone in seeing what Judith accomplished for her client. You know better than I regarding what the 9th Circuit Court of Appeals may due with the Judge’s instructions to the jury. And I am glad you pointed out to the readers here what may be called a disagreement among some of the circuits. Who knows, this issue may eventually make it to SCOTUS. I’ve worked with Judith in the past and I think she has to be one of the best musicologists around today.

        • Jay says:

          I’m not a litigator, so not expert on the procedure. But the idea that works can infringe by virtue of similar “total concept and feel” is pretty well settled in the 9th Circuit, so I don’t know on what basis a litigator would say it was reversable error to give the instruction.

  2. Jeffrey Weber says:

    Cogent assessment, Moses. Agree entirely. Jeff

  3. Geza X says:

    Moses,

    Isn’t this what I was predicting? If you can copyright a color, as Jay-Z did and Amazon can copyright “photographing against a white background” we are in trouble.

    Lyrics and melody were once the standard for plagiarism. In today’s intellectual property gobbling frenzy we are getting too many lines blurred. Homeland Security will have so much business tracking down these future “thought crimes”. No I am not kidding or exaggerating-the trend line is obvious. The real problem is what happens to the average consumer and the creative person. This stifles popular culture, which consists of casual cross-pollination.

    Geza

    • Jay says:

      There’s no copyright in a color, Geza, or an idea. Perhaps Jay-Z got some kind of trademark rights in a color (which is possible under limited circumstances, I believe), but that’s a different matter.

  4. Al Staehely says:

    Mo: Compulsory statutory rate wouldn’t have worked because there are too many different elements that would require a license for a derivative work which, of course, is negotiable and not compulsory.

    Also, 8.1 cents or 9.1 cents?

  5. David Parker says:

    I trust all of the above commentators have reviewed Judith Finell’s preliminary report submitted prior to the Judge’s decision to go to trial. If not, you can find it at
    http://www.hollywoodreporter.com/sites/default/files/custom/Documents/ESQ/musicologyblurred.pdf

    She I believes argues for the concept of “substantial similarity.” I would be interested in hearing everyone’s opinion of her preliminary report.

    • Moses Avalon says:

      Yes, I have read the sponsored “expert opinion.” Of the seven items that it claims are a “constellation of similarities,” several have never been considered protected by copyright of the composition — EVER. They are things like “phrasing,” and “identifying elements” such as cow bell, 5-6-1 chord progressions, and base line structure. Finell comes within a hair of admitting that the infringing elements are NOT part of the composition but rather the sound recording. This is the scary part because we are now getting dangerously close to being able to copyright “a sound” or a “feel.” Which would cripple the music business more than file sharing.

  6. Joe Solo says:

    You nailed it Moses.

  7. Stan Halaby II says:

    Hi Mr. Moses!

    Greed knows no bounds it seems. What’s really funny (and I almost did it for a laugh) You take Marvin Gaye’s tune and substitute the necessary instruments like on a midi file, you got a dandy polka! But that’s just my opinion. I could be wrong 😀 😀 😀

    -Stan

  8. David Parker says:

    All very good points, Moses. The main reason this federal case did not involve the sound recording is that the original copyright filing was prior to 1972. Which is one of the reasons this case will probably settle and the terms of the settlement will be under a confidentiality situation. And if that happens, it will leave us all hanging with an lower federal court case for pre-1972 songs that will be forever talked about. But I am sure you see where Judith is going. And if this was a sound recording copyright infringement case, as you know substantial similarity is one of the elements needed to survive a motion to dismiss. Regards, David

    • Jay says:

      It may not have mattered if a claim of similarity re the sound recordings was made. Sect. 114 of the Copyright Act essentially states that it is not an infringement to imitate a sound recording (e.g. make a “sound alike”). Of course if you did that, you’d infringe the song if you didn’t get a mechanical license. But if you did get a (compulsory) mechanical license, you could make a recording that sounds just like Marvin’s and it wouldn’t be an infringement. I think the tougher issue is when do elements added by musicians in a recording become part of not only the recording, but also of the “musical composition,” and where does the musical composition subject matter end and the sound recording copyright begin. The English have dealt with this a little in the “Whiter Shade of Pale” case (creator of the organ part owned part of the composition), and The Honorable Justice Mr. Richard Arnold in the UK has written a short article about the concept of performers contributing compositional elements.

  9. David Parker says:

    One more thing. Even if this case is upheld on appeal and stops there, I disagree that it would cripple the music business more than file sharing. Truly talented song writers don’t write songs the way the plaintiffs in this case admitted to doing. I emphasize the word “talent.”

  10. I think Thicke and Pharrell’s lawyers should go back to the basics on the appeal; ‘what is the melody and what are the lyrics?’ Other than the sound recording, these are the only things we can copyright.
    This would set a precedent that could fill the shark tank with blood. A lot of lawyers will get in a food frenzy if this case stays.

  11. Overviper says:

    In my opinion, there is no question that Pharell Williams stole the groove. You may argues that a “song” consists of melody and lyrics, but for many years now records have been sold on the basis of much more than that…witness the liberal sampling of James Brown in many Rap records as just one example.
    I have seen this in my studio numerous times…a “producer” will come in with a sample or a loop of a song, put it into ProTools or some other DAW, and have musicians or programmers play along until it’s the same…then they take away the loop and “write” the song.
    I’m not a lawyer…and I don’t know what actually happened in this case…but I’m a musician. My ears don’t lie. Blurred Lines is just too close to the Marvin Gaye track. It wasn’t “inspired by”, it wasn’t an “homage to”, there was no “mad respect”…they ripped it off, pure and simple. They should not only pay, but put Marvin on as co-writer.
    And by the way, for those people silly enough to say this decision will stifle creativity or inhibit songwriters in the future, the state of today’s music dictates that it would be a good thing if there were some groundbreaking new music ala The Beatles that sent songwriting off in some new and more unique directions. The people who don’t want to see this are the people who are invested in selling the public the same old, same old…
    Too bad it’s about the money instead of the music, but then, that’s an old story…

  12. J-Lon says:

    Good info here. Your analysis makes a lot of sense Moses.

    Between the Extrinsic/Intrinsic tests and the Inverse Ratio Rule, the 9th Cir approach to infringement is likely more favorable than some other judicial circuits to owners of successful copyrights (many of of whom tend to be be large entertainment conglomerates).

    By its very nature, it’s going to be easier to prove access for a popular song, because it has been widely disseminated. And as you point out, in this case, we had lots of other evidence that the defendants had access. Indeed, they admitted it.

    At that point, the bar was significantly lowered for the plaintiffs in terms of how much objective idea similarity they needed to show to make it through the 9th Cir’s extrinsic test. And if you make it through the extrinsic test, then you’re off to the jury for the intrinsic test. That’s a subjective test. So to me, all bets were off there.

    Against that backdrop, I’d really be interested to hear the opinions of some attorneys experienced in copyright appeals in the 9th Circuit.

    What would be the basis for the appeal? Would the argument be this: (a) that the trial court judge erred in applying the extrinsic test, even with the low bar set by the Inverse Ratio Rule, (b) that as a matter of law there was not enough objective similarity to fulfill the extrinsic test; and (c) therefore, the suit should have been dismissed on summary judgment?

    Or do you try to attack the jury instruction, when as Jay says, “infringe[ment] by virtue of similar ‘total concept and feel’ is pretty well settled in the 9th Circuit.

    I’m not a litigator either, but this doesn’t seem like a slam dunk to get overturned on appeal to me.

    If it had been brought in the 2nd Circuit, where the court has more latitude to consider certain factual issues as a part of the summary judgment process, perhaps it would have been dismissed. But it wasn’t brought there.

    You are right. In no small part, the defendants lost because they let their hubris get the better of them and they weren’t sympathetic to people. I’m sure that the Gaye estate people weren’t the easiest to deal with and they probably wanted more than the norm on the front end, which is why the defendants opted not to try and make a deal.

    But whatever the actual 9th Circuit intrinsic test is, it’s broad enough and subjective enough that once an infringement case gets before a jury, we’re in Potter Stewart pornography land (“I know it when I see it).

    This case probably is bad precedent moving forward. But on the actual facts, even if the jury decided as they did for the wrong reasons, in a frontier justice sort of way, does it really feel so wrong that they’re making the defendants pay here?

    At the end of the day, this is why so few of these cases ever make it to the jury. It’s pretty much a dice roll, no?

    So yes, the outcome here probably will mean more preemptive upfront pay-offs to avoid this sort of thing, just like sample clearing after the wild west period ended.

    But sampling still happens. It just made people have to either work harder to obscure the samples or be more creative about the samples they used.

    Perhaps this decision will do something similar and encourage people to dig deeper and work harder to be less obvious about what sort of references they use (or what sort of stuff they are trying to evoke).

    Homage is certainly an important part of musical creativity. But maybe the pendulum has swung to a point where it’s too central to what’s going on. When you’re trying to sell something, it’s natural that you want to go to the well of approaches that have already demonstrated themselves to be successful with a large audience. If this ruling encourages creative people and corporate disseminators, out of practical necessity, to focus less on homage, maybe those limitations end up being productive. Or not. I guess we’ll see.

    In any case, I doubt this decision will be as significant as many people worry.

    The 9th Circuit approach worked as it was supposed work, because imho it’s set up primarily to protect the interests of large entertainment companies.

    If you are a small creator who writes a song, submits it unsolicited to a large label or publisher, and then later hears it on the radio credited to the corporate label’s artist, the Inverse Ratio Rule works against you and you are going to have a tough road proving the access prong of the extrinsic test. As a result, your infringement suit will probably be dismissed on summary judgment.

    Conversely, if you are a big corporate owner of a copyright or a successful artist who owns a copyright, you will have a much easier time proving access, and the Inverse Ratio Rule will also make it easier for you to prove the similarity prong of the Extrinsic test. So your odds of avoiding summary judgment are better, and as a defendant, your risk of seeing a jury is higher.

    Consequently, small players are weeded out at the summary judgment level (i.e., the unsolicited script or song problem), while big players are encouraged to settle or risk the unpredictable jury trial.

    That’s why the prudent move as a defendant is usually to settle, which is what typically happens. In the long run, that’s probably better for everybody, because the goal of litigation is always to provide an unpredictable worst case scenario that encourages both parties to sort out their differences via settlement.

    Indeed, if it had just been corporate people involved here, I bet this would have settled. Corporate people are business first. Corporate people also know that they will ongoing relations with their competitors and that a reasonable level of collegiality is important. So they need to look at the bigger picture. In addition, in this case, it sounds like the defendant’s publisher/label also had ties to the plaintiffs. So there may have been some conflict of interest type stuff going on.

    I’m sure that was a part of getting the Gaye estate even more ramped about things. They didn’t feel that their corporate allies were really acting as allies. After all, what do they care about the bigger picture of the music business, etc. They just want their money, and one imagines they felt that the defendants should have just cut them in at the start.

    Nevertheless, it won’t surprise me if we still get a settlement here, unless the Gaye estate people really are a little crazy. Cuz now they have $7.4 million to lose.

  13. J-Lon says:

    Just so people understand: There is no jury in an appeal. An appeals court only reviews the application of the law. It doesn’t review the jury’s findings of fact. They do this within the framework of a standard or review and they do it with reference to their circuit’s precedent. So the 9th Cir court of appeals is going to be looking to 9th Cir precedent as the mandatory authority for making its decision. All other precedent from other jurisdictions is considered persuasive (except US Supreme Court precedent, which is mandatory in all federal circuits).

    In some cases, the appeals court can remand the case for additional factual determinations based on whatever clarifications it has provided in its opinion.

    But to overturn a lower court decision, the appeals court typically has to find something wrong with how the lower court judge conducted the proceedings or applied the law.

    This is why Jay brought up the issue of the jury instructions above. If it can be shown that the lower court judge erred in instructing the jury as he did, then that might provide grounds for overturning the decision.

    That’s why I’d be really curious to hear the opinion of any attorneys with 9th Cir appeals experience on copyright infringement.

    I’d love to understand more about how you try to attack an outcome like this one.

  14. Osiris Munir says:

    Moses, checked your Fox interview on the Melissa Farncis Money Morning show . I agree with Attorney Dominic. I feel the same as you two. With the tidbit of what i have experienced Pharrell, Thicke and their Attorney’s seemed unprepared for a trial of this statue. Pharrell in his defense, sounded more like a kid fighting against a twisted system. The argument in fact, is that, Marvin Gaye is gone, never to perform again, no flood or long line standing to buy, well except for his revived in full blown market since the recording of “Blurred Lines”, his music is not on the current EDM charts. It is a nostalgic memory to hear the sounds of yore, however without the use of this music in hip hop and other related genres, deceased artist such as Gaye would become obscure only to be played by collectors, die-hard fans or folk that actually lived during Gayes time. Meanwhile the kids, young and old, bounce their butter balls to the beat of a Gaye, Brown as in James, and others like them. I collect and thought that I would bust some real track sounds classic Marvin Gaye. It sounded simple in comparison like its from long ago, slow and easy in comparision, adaptable to the times and yet maintaining it’s own brand of organic musical royalty. A split would have done the trick.. (:♧

  15. CJ says:

    I believe it was too blatant and flagrant a copy to set a negative precedent, especially when it was of a classic song by a beloved artist. Hopefully it will be a precedent for more creativity by song writers- in my humble opinion.

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