How the jury in the ‘Blurred Lines’ case was misled

Do people really think that only one song with a similar "feel" should be written? That would be crazy.

http://theconversation.com/how-the-jury-in-the-blurred-lines-case-was-misled-38751

Wendy Gordon
William Fairfield Warren Distinguished Professor and Professor of Law at Boston University
Mar. 17, 2015

Last week, a jury in California decided that Pharrell Williams and Robin Thicke should pay $7.4 million to the family of Marvin Gaye, finding that Williams' and Thicke’s 2013 song “Blurred Lines” unlawfully copied Gaye’s 1977 hit “Got to Give It Up.”

At play here is whether or not the composition of “Got to Give It Up” (ie, what can be reflected in sheet music) was too closely copied in the music produced by Thicke and Williams. It’s a different question from comparing the recorded tracks, which do have some obvious similarities. For example, “Blurred Lines” and “Got to Give It Up” are both dominated by falsetto male voices that are high, shrill and happy. [This should not show copyright infringement.] But Gaye’s copyright registration was on hand-lettered sheet music that directs neither an upbeat mood nor use of a falsetto vocal technique.

Recognizing this discrepancy, the judge only permitted the jury to hear renditions of the sheet music and stripped-down, edited versions of the Gaye sound recording. On the surface, this would have made it more difficult for Gaye’s family to win: compared to Gaye’s recorded version of “Got to Give It Up,” the simpler, stripped down versions probably sound far less like “Blurred Lines.” Nevertheless, the jury ruled for the Gaye estate.

So what happened?

A closer look shows that the judge erred in his instructions to the jury by blurring the lines between what does and doesn’t constitute copyright infringement.

It’s crucial for a jury to be told that “unlawful copying” only arises if the claimant’s evidence satisfies two tests: the factual question of “did they copy,” and the subsequent question of whether the copying was legally improper.

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In copyright law, the second criterion is particularly fuzzy. The courts give various (unhelpful) names to this second test, such as “substantial similarity” or “improper appropriation.” Essentially the judge will ask the jury whether the copying of protected elements was “too much.”

But big problems arise when only the first criterion (whether any copying took place to begin with) is emphasized to an extent that it drowns out the second.

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Copying something original is often perfectly lawful, not to mention ethical. People find inspiration in past works all the time. Copying an idea – even an idea that’s original – is not merely within the law: it’s encouraged by it.

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What’s not lawful is to copy too much expression – that is, the details of the copied artist’s aesthetic and organizational choices. At some point, as these details accumulate, enough expression might be copied to be considered “substantial.”

The difference between lawful copying of ideas and “substantial” copying of expression is what the jury should have focused on in the Blurred Lines case – at least, if they were persuaded that copying occurred.

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Finally, Instruction 43 – a confusing welter of legal jargon – also suggests to jurors that copying an idea can count as infringement. The jurors are told, among other things, to notice if the claimant’s work and the other work possess a similarity of ideas. The instruction then tells jurors that they can find infringement if they perceive that the “total concept and feel” of the two works “are substantially similar.” The instruction does not tell the jurors to disregard any similarity in “concept and feel” that results merely from the same ideas being used in the works being compared. As a result, the jury may think itself duty-bound to find infringement if two songs have the same “feel” simply because the songs share the same idea – in which case, the jury will have been led to a misguided conclusion.

Because of the trial court’s poor instructions, a retrial of the “Blurred Lines” controversy might eventually be ordered by the Court of Appeal for the Ninth Circuit (less formally known as the “Court of Appeal for the Hollywood Circuit”).

Unfortunately, the Ninth Circuit’s own copyright decisions are full of similar confusions, and leave open the exact possibility exposed by the the “Blurred Lines” case: that use of a predecessor’s idea might result in infringement.

Artists seek inspiration from the past. Through borrowing and building upon ideas and “grooves” from those who came before, culture evolves. In this respect, the “Blurred Lines” verdict sets bad precedent for artists – and for the rest of us.

It’s no wonder that the outcome of this case makes musicians nervous.