You may recall the infamous lawsuit brought by Marvin Gaye’s estate against Robin Thicke and Pharrell over their 2013 song Blurred Lines (for those who do not you can read more here).
The decision in the Blurred Lines lawsuit was a major blow to the music industry. The US Ninth Circuit Court of Appeals found that although Blurred Lines and Got To Give It Up did not share the same melody, lyrics or even underlying chords, they shared the same feel and this was enough to constitute copyright infringement. In her dissenting argument, Judge Jacquelyn Nguyen claimed that the ruling struck “a devastating blow to future musicians”. She was not wrong.
Peter Oxendale, a professional forensic musicologist and expert witness in the Blurred Lines lawsuit, spoke of how the judgment led to musicians being advised not to reveal the source of their inspiration. This would undoubtedly hinder creativity. Some artists would even employ musicologists to listen to new releases in the hope of being able to secure payments from the songwriters. Mark Ronson’s Uptown Funk increased from six to eleven credited songwriters after The Gap Band got involved, leading to a dilution in the publishing royalties for the worldwide hit.
However, fast forward a few years and two recent judgments may have changed the music industry’s attitude to copyright infringement for the better. Firstly, the Ninth Circuit ruled that Led Zeppelin’s Stairway to Heaven did not infringe Spirit’s copyright in their track, Taurus. The Court held that the two songs were not substantially similar, despite Led Zeppelin’s high degree of access to Taurus. The Court took the view that access is diluted in the digital world and this may well raise the bar for proving access in future cases.
The second case is a Federal Court judgment which overturned the 2018 jury verdict that Katy Perry’s Dark Horse had infringed the copyright of Flame’s Joyful Noise. Although on an initial listen the ostinato might sound similar, the Court used an extrinsic test which involved a complex analysis of the concepts underlying the separate pieces. This led the Court to determine that the eight-note ostinato shared between the songs was not substantially similar and was ultimately too commonplace to be protectable by copyright.
These recent judgments are clearly huge victories for an industry stifled by excessive litigation. We can only hope that this positive trend continues but nevertheless we remain optimistic.
As always, our specialist solicitors and music lovers here at Briffa are always on hand to help with all things music, be it contracts, claims or even just a free chat about what’s what. Please do not hesitate to contact us at firstname.lastname@example.org or on 020 72886003 for a free consultation.
Written by guest author Keir Galloway Throssell and Alex Fewtrell, solicitor