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Thursday, April 2, 2015

Blurred what?!?

By: Aaron Riedel

Two weeks, a jury awarded Marvin Gaye’s family approximately $7.4 million in damages after a federal court found that Pharrell Williams’ and Robin Thicke’s song “Blurred Lines” had infringed upon the copyright contained in Marvin Gaye’s song “Got To Give It Up.”

While this case has specific implications for the music industry, it also illustrates several important points about copyright infringement that are applicable to creators of copyrightable material at large, including advertising agencies, creative firms, and digital content creators.

First, deciding whether copyright infringement exists can be subjective. While there are several tests applied by the federal courts to determine whether a defendant has infringed upon a plaintiff’s copyright, there is no bright line rule. In other words, there isn’t a certain number of notes or measures in a song, or a certain number of elements in a picture, that would automatically qualify as an infringement.

Generally, the standard for copyright infringement is where a new work is “substantially similar” to an original work. In determining whether two works are “substantially similar”, courts will typically analyze the “total concept and feel” of the allegedly infringing work, before looking at specific points of comparison. In the musical context, courts will consider the specific elements of a song, including, musical and lyrical phrases, signature hooks, prominent and backup musical themes, vocal patterns and melodies, production choices, octaves, keys, and printed music scores.

Secondly, how much can a musician or artist look to or rely upon another artist’s work for inspiration? The decision in this case sets new precedent that musicians specifically, but even creators of copyrightable content generally, must be extraordinarily careful when including elements of the work that evoke the feeling or appearance of another’s copyrighted work. The difficult issue is that no one can copyright an idea. Thus, no one should be able to copyright and control an overall sound of an era or a genre of music. However, as the “Blurred Lines” case demonstrates, the amount you take to include within your work must be analyzed in depth prior to your work’s publication, even if you think that you are merely evoking the feeling of a genre or paying homage to another artist or creator’s work.

Third, the damages that can be awarded to a plaintiff for copyright infringement include a number of monetary remedies. These include actual damages (monetary damages suffered by the defendant) and disgorgement of profits from the infringing work (taking profits that the defendant made from the infringement work and giving them to the plaintiff), or statutory damages (specific monetary damages amounts written into law). In the “Blurred Lines” lawsuit, Williams and Thicke were awarded all several forms of damages. Williams and Thicke must pay the Gaye family, (a) $4 million in damages, (b) approximately $3.36 million from profits earned from the song, and (c) $9,375 in statutory damages.

While not every copyright infringement case includes damage sums as large as these, this lawsuit illustrates that infringing another’s copyright can have a substantive financial effect on your business. 

Before publishing a copyrightable work, whether a song, a piece of art, software, written content, or a photograph, it is best to review existing works in the same field for similarities (whether you intended them or not) to ensure they are not substantially different.

For any questions on copyright analysis or copyright infringement, you may contact attorney Aaron Riedel at adr@moisanlegal.com


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