Robin Thicke Judgment: The Day Copyright Law Died, Again [Opinion]


When we last joined the American courts’ impossibly damaging precedents for copyright law, an appeals court decided to blow away the de minimis doctrine for sampling. That’s “de minimis” (Latin), as in “size matters not” (um… Yoda).

The idea was, there was no need to measure the significance or size of a sample in the N.W.A. song “100 Miles and Runnin’.” The court helpfully offered at the time, “Get a license or do not sample. We do not see this as stifling creativity in any significant way.” Here’s a reasonable summary (my Keyboard article I think is not online):

Bridgeport Music, Inc. v. Dimension Films

In fact, many at the time thought that stifling creativity is exactly what could happen. Without a de minimis standard, or “bright line test,” any sample becomes infringement. A common sense law wouldn’t do that: almost any logic of justice looks at harm and amount. (Imagine if shoplifting counted stealing a corner of a leaf from a strawberry.) With digital sampling, just working out where sounds have come from can be a challenge. As if to illustrate that point, you’ll notice that the N.W.A. case involved Dimension Films. The N.W.A. sample was licensed – it just lacked mechanical rights, so Bridgeport descended on an unauthorized use of the sample (by way of the song) in a film.

Well, here we go again:

Robin Thicke, Pharrell Lose Multi-Million Dollar ‘Blurred Lines’ Lawsuit [Rolling Stone]

Here’s the irony: the Bridgeport case was so over the top that it didn’t stifle creativity. It stifled any lawsuit that would dare cite such a dangerous precedent. Germany, the other country you can count on to be more or less totally insane when it comes to licensing (hello, GEMA overlords), reached a similar case later, but that was it.

In 2005, when the case was decided, I was researching the article for Keyboard. Back then, recording and publishing entities were already scared of the Bridgeport Music precedent. Why? Because it massively expanded potential liability. If a sample could be unrecognizable but still infringement, any material could infringe. A rights owner wouldn’t want to bring a case using that argument over one piece of music, because they might face similar suits.

In other words, the court going nuclear meant mutually assured destruction for everyone.

Well, if you’ve caught the case over Robin Thicke’s “Blurred Lines,” my view is that we now essentially get the same level of absurdity for musical content.

The question is not whether “Blurred Lines” is a good song, or even whether it’s original. Truth be told, it isn’t. It is clearly a tune that borrows heavily from the earlier Marvin Gaye song – it’s essentially a new song written in the old template. And if it comes to taste, many of us would choose Marvin Gaye over Robin Thicke. Ahem. (Even before we get to the ridiculously sexist video.) But taste isn’t what’s an issue. The question is what constitutes infringement in the eyes of the law.

The good news is, the case brought by the Marvin Gaye estate at least does apply some kind of de minimis logic. Musicologist Judith Finell apparently diagrammed some eight similarities in the song, and the closing arguments by the Gaye estate lawyer leaned heavily on that fact. You can follow the closing arguments in the excellent blow-by-blog coverage The Hollywood Reporter has been doing:

‘Blurred Lines’ Trial: Marvin Gaye’s Family Seeks $25 Million in Closing Argument

The bad news is, the actual material isn’t a sample – not in the digital sense as in the N.W.A. song, but not even in the literal musical sense. There are musical gestures and structures that are similar in “Blurred Lines” to those in “Got to Give it Up.”

Whoa – wait a minute. I’m not sure I’d be able to wax poetic about the originality of Robin Thicke, Pharrell Williams and T.I. in the way that their lawyer Howard King does. That’s why I’m not a lawyer. (It didn’t help that Thicke actually testified he was drunk and high on Vicodin at the time.)

But I agree with King’s argument says that “the Gaye defendants are claiming ownership of an entire genre, as opposed to a specific work.” (See Rolling Stone at the time, covering a pre-emptive lawsuit by the “Blurred Lines” creators under the threat of a lawsuit.) For kicks, our friends at Bridgeport Music were again involved in the suit (those parties reached an agreement).

You can listen to the comparison at top and get a sense of just how wild this gets. As lawsuits around samples first started to pile up in the hip hop world, as those artists were essentially punished for using digital sampling hardware, the solution was to simply play a part on an instrument.

Imagine the history of music if, not only you couldn’t “sample” a few notes by playing them again, but you couldn’t make any musical gestures with similar grooves, rhythmic structures, chord structures, or forms.

Congratulations: you’ve broken music.

Even worse, it seems that the solution would be to make music so generically similar that it wouldn’t sound like anything – you know, more or less a lot of the chart-topping music you hear today. Compare the history of jazz and blues, for instance, which produced creativity partly because so many of the stock elements of the songs were intentionally copied from one piece to another.

To that, the likes of the Gaye heirs now say to any new music, all the things you are, are mine.

And yes, that counts as a chilling precedent.

You don’t really think you’re going to get away, do you? Good luck, brothers.

Hey, the infringing song was pretty damned good, right?

The post Robin Thicke Judgment: The Day Copyright Law Died, Again [Opinion] appeared first on Create Digital Music.

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