Tag: copyright

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Law

A final note (for now) on the ‘Blurred Lines’ verdict

Whatever your take on the verdict Tuesday that awarded the estate of Marvin Gaye a win in its claim that Robin Thicke and Pharrell Williams plagiarized part of “Blurred Lines” from a song that Gaye copyrighted in 1977, it may be helpful to remember that we aren’t the jury.

We didn’t hear the evidence, nor did we try our best – assuming that’s what jurors do – to follow an instruction from Judge John Kronstadt regarding the law that applies. Thus, imagine that we’re jurors, we’ve heard all the testimony – including Thicke’s serenading us with segments of popular songs – and now the judge instructs us.

At its core, infringement requires a finding of similarity of expression that’s protected by copyright. “Similarity that is confined to ideas and general concepts is not infringing,” Kronstadt explained. “Similarities derived from the use of common ideas are not protected.” He continued.

Trivial copying is not copyright infringement. Copying is trivial if the average audience would not recognize the copying of the Gaye Parties’ work in the Thicke Parties’ work.

You must determine whether any copying of the Gaye Parties’ work in the Thicke Parties’ work is trivial. If the copying is trivial, then the Thicke Parties’ did not infringe the Gaye Parties’ copyright.

Thus, the jurors unanimously found, after hearing the evidence, that “Blurred Lines” bears a similarity to “Got to Give it Up” that is more than an idea or concept.

The “verdict sets a terrible precedent,” according to Adam Pasick at Quartz, who notes that the finding that Thicke and Williams infringed merely by trying to evoke the feeling of Gaye’s song – as lawyers for the duo argued – “could have a chilling effect on musicians trying to create new songs.”

That may be. Yet as Kronstadt instructed jurors, “Intrinsic similarity is shown if an ordinary, reasonable listener would conclude that the total concept and feel of the Gaye Parties’ work and the Thicke Parties’ work are substantially similar.”

Jurors seem to have followed his instruction.

Others have said the court misapplied the law more broadly. “The Gaye estate’s copyright covers only the notes of his song (the composition), and not the way it was played (the sound recording),” writes Tim Wu, a professor of law at Columbia, in The New Yorker.

According to Wu, who notes that Gaye registered a copyright for the composition but not for the recording:

With a broader copyright, Gaye’s estate would have a stronger claim to owning some of his particularly distinctive style choices. But, given that the copyright covers only the notes and Pharrell did not borrow any note sequences, the judge was legally obliged to throw out the case.

That also may be decided on appeal. For now, imagine you are a juror and Kronstadt has charged you as follows.

If the Gaye family showed that is more likely than not that there was a substantial similarity between the songs, then you can presume that Thicke and Pharrell copied.

According to Kronstadt, Thicke and Pharrell could rebut that presumption if they showed that it is more likely than not “that they independently created the infringing work or works.”

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Law

Robin Thicke performs at ‘Blurred Lines’ trial

Robin Thicke may be hoping his testimony hit the right note.

The singer of “Blurred Lines” serenaded jurors in a federal courtroom recently as part of an effort to show that he and his fellow songwriters did not copy “Got to Give it Up” by Marvin Gaye.

At issue is a claim by Gaye’s children, who charge Thicke and songwriters Pharrell Williams and T.I. with infringing their father’s composition.

To aid Thicke’s testimony, U.S. District Judge John Kronstadt authorized the songwriters to set up an electronic keyboard in the courtroom.

As part of a demonstration to show how easily a song can be structured to sound like others, Thicke reportedly played some of “Blurred Lines ” along with songs by the Beatles and U2.

Part of the performance included Thicke’s attempting to substantiate that songs with similar chords – such as “With or Without You” and “Let it Be” – can be recorded differently. The medley by Thicke also included Bob Marley’s “No Woman No Cry,” Michael Jackson’s “Man in the Mirror” and “Forever Young” by Alphaville.

Musicality aside, the demonstration was notable, because “essentially what Thicke and Pharrell are arguing is exactly the opposite, which is that however similar the recording of ‘Blurred Lines’ and ‘Got To Give It Up,’ they found the actual underlying compositions are very different,” Austin Siegemund-Broka, who is covering the trial for The Hollywood Reporter, told Southern California Public Radio.

According to Siegemund-Broka, the writers of “Blurred Lines” contend that their song uses two chords — E-major and A-major — while Gaye’s composition uses eight chords

Besides an electronic keyboard, Thicke also obtained permission to carry in power cords, an amplifier, amplifier cables, a speaker, a keyboard stand and a surge protector, according to an order that Kronstadt signed on Feb. 24.

Here are the songs. See what you think.

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Law

‘Julie of the Wolves’ battle gives glimpse into copyright in a digital age

A battle over rights to publish an electronic edition of an award-winning children’s novel offers a glimpse into an evolving area of copyright law.

HarperCollins has the exclusive right to publish “Julie of the Wolves,” a book first published in 1971, in e-book form, a federal judge in New York has ruled. The ruling ended a lawsuit that started nearly five years ago, when HarperCollins sued Open Road Integrated Media, a publisher of electronic books that had published an e-book of the novel.

Though the fight ended recently, it has roots in a contract forged in 1971 between Jean Craighead George, the book’s author, and Harper & Row, a predecessor of HarperCollins. The agreement gave Harper & Row the right to publish “Julie of the Wolves,” which won the Newberry Medal in 1973 and tells the story of an Eskimo girl who learns to live in the wild.

In 2010, George entered into an agreement with Open Road to publish its version of her novel after HarperCollins declined to match the terms of Open Road’s offer, which included a 50% royalty to George. However, shortly after Open Road published the electronic edition, HarperCollins sued, charging that the e-book contravened a copyright that belonged to HarperCollins under the contract formed roughly 40 years earlier.

HarperCollins prevailed. “Based on a plain reading of the contractual language, we hold that the 1971 contract grants HarperCollins the exclusive right to license third parties to publish e-book versions of ‘Julie of the Wolves,’” Judge Naomi Reice Buchwald of the U.S. District Court in Manhattan wrote in a ruling last March. “This determination follows from the contract as a whole, and chiefly from Paragraphs 1, 20 and 23.”

Paragraph 1 of the agreement gave Harper & Row the exclusive right to publish “Julie of the Wolves” in book form. Together with Paragraph 23, Paragraph 20 granted Harper & Row the right to license the book “in storage and retrieval and information systems, and/or whether through computer, computer-stored, mechanical or other electronic means now or hereafter invented.”

Buchwald’s ruling should have ended the lawsuit. But Open Road, which hoped to obtain a license to publish the e-book, sold 304 more e-books between March 17, when the court issued its order, and April 9, when HarperCollins’ general counsel told Open Road’s lawyer that HarperCollins had no interest in a license and demanded that Open Road stop selling its electronic edition.

In May, HarperCollins returned to court to ask Buchwald to permanently enjoin Open Road from publishing “Julie of the Wolves” or presenting itself as an authorized publisher of the novel.

The court agreed. “Rather than take immediate steps to conform to our decision, [Open Road] apparently viewed that decision as merely a prelude to negotiations,” Buchwald wrote in an order published Nov. 24. “Furthermore, although Open Road discontinued sales after receiving HarperCollins’ demand, it is apparent that Open Road did not take every reasonable action to discontinue marketing its unauthorized edition of ‘Julie of the Wolves’ until after briefing on the appropriate remedies had commenced.”

“In other words, Open Road failed to ensure compliance with our decision until its failure was called to the Court’s attention,” Buchwald added.

The court awarded HarperCollins damages of $30,000 to compensate the company for sales of the e-book by Open Road in markets covered by HarperCollins’ copyright.

Though HarperCollins also asked the court to order to award attorneys’ fees of roughly $1 million, Buchwald denied the request, finding that Open Road’s advocating for a right at odds with the 1971 contract was not unreasonable as that term is defined by the Copyright Act.

“Our reticence to characterize the losing position as objectively unreasonable is informed by the fact that this dispute arose in the context of a developing, and still somewhat uncharted, area of copyright law,” Buchwald wrote.