The Lines of Copyright Infringement Have Always Been Blurred

I swear the title of this post is the only time I’ll be making that pun.
The “Blurred Lines” case was actually highly unusual because of a key principle of copyright law that has not been discussed much at all: access. When the alleged infringement is “non-literal” (i.e., not word-for-word or note-for-note), you have to prove that the alleged infringer had “access” to the underlying work. This is usually very difficult to prove, because proof of access usually rests with the alleged infringer, who has little incentive to remember things correctly. But in this case, Robin Thicke told a magazine that he and Pharrell Williams not only were exposed to “Got to Give it Up,” but they had its “groove” in mind immediately before they wrote it. After that, it was just a (still difficult) matter of experts and a jury’s gut instinct, and here we are.
If this case exposes a problem, it’s that the law governing copyright infringement is so varied and inconsistently applied, and it relies to such a large extent on a jury’s gut feeling, that it’s difficult for artists to know when they’re too similar to works that they have frankly been inspired by. But it’s been this way for about 100 years, and I don’t think this verdict will “chill” creativity, though it might make Mr. Thicke choose his words more carefully when talking to the press in the future.

The Jury Spoke, and There Was Much Freaking Out.

There has been so much freaking out about the jury verdict in the “Blurred Lines” case, that I wanted to write a short blog post to explain some misconceptions. However, I do have something of a dog in this fight, since I am helping to represent a songwriter in a case pretty similar to the “Blurred Lines” case. The upside of that is is that I have researched the living hell out these issues (oh, and I’ve taught them at Vanderbilt).
There are a couple of things I’m not going to talk about. First, I’m not going to criticize the jury, not because juries are never wrong (if only)¹Criticizing juries is fun because it makes you feel superior, but snobbery isn’t analysis., but because I wasn’t in the courtroom experiencing the evidence the same way the jury did. I strongly suspect that many of the criticisms of the verdict arise from a misunderstanding of what evidence was presented. Second, I’m not going to talk about damages because we haven’t heard the last word on that by a long shot.²My big question about the damages is how can “Blurred Lines” be an infringing song, but distributions of sound recordings of the infringing song not be infringing?
The biggest objections I’ve read about the jury’s verdict are:

1. If this counts as infringement, won’t the floodgates of copyright infringement suits open?
2. Doesn’t this greatly expand the scope and reach of copyright (and hand a huge victory to scurrilous “copyright maximalists”)?
3. Didn’t Williams³Since Thicke has greatly minimized his contribution to “Blurred Lines,” I’m just going to talk in terms of Pharrell Williams as the writer of the song. just pay homage to Gaye and/or write a song in the same “genre” as Gaye? Isn’t the Gaye family laying ownership to a genre?
4. If Williams didn’t take actual notes from Gaye’s song, how is that infringement?
5. Didn’t all the publicity help sales of Gaye’s song?⁴Short answer: so what? You don’t have to be personally harmed to have a claim for copyright infringement.

The Basics of Copyright Infringement (Non-Literal Version)

To answer these questions, you have to understand some basics about copyright infringement, not all of which are pleasant. But first, let me emphasize something. All of these basics principles have remained more or less unchanged for nearly 100 years, and if anything, have narrowed over time. They also haven’t exactly gotten clearer over those years, either. There’s something else I want to emphasize: We’re not talking about cases of verbatim or near-verbatim copying, but where the works are arguably similar.
The basic principles, which are mirrored in some fashion (minus my snarks) in the jury instructions (which you can read here), are these:

• The thing to keep in mind about copyright infringement is that it has to involve copying. Similarity isn’t enough.⁵Big exception which isn’t applicable here: if the similarities are near-verbatim—known as “striking similarity”—then copying can be presumed. If my song is exactly like yours, what are the odds I made it up myself? If you were never exposed to the underlying work, you cannot have infringed copyright in it.
• Thus, proving copyright infringement requires proof of (1) copying and (2) “substantial similarity.”
• But here’s an unpleasant fact: different Circuits have different ways of handling these two elements, and even within a Circuit⁶I’m looking right at you, Second Circuit.there may be more than one established way. Even then, they are often applied inconsistently.
• In most circuits, to prove copying, you have to prove that the alleged infringer had actual access to the underlying work—not the mere possibility of access. This isn’t terribly controversial.
• When copyright cases fail to prove infringement, they usually fail because they can’t prove access. Access means more than merely the chance of exposure; it means (in the words of the jury instruction) “a reasonable opportunity to hear.”
• Access is also a pretty clear question of fact, and the evidence is usually in the hands of the alleged infringer (“No, I never heard of it in my entire life.”).
• One thing that was unusual about Williams is that there was unusually strong evidence of access. Thicke basically admitted it long before the suit was ever filed.
• For a work to be infringing, it doesn’t need to exactly replicate the underlying work. It just needs to be “substantially similar,” which happens to be the other element of copyright infringement.
• Circuits are all over the map on how to handle “substantial similarity,” and the Supreme Court has never intervened to settle the roiling circuit split. This is surprising considering how central “substantial similarity” is to copyright law.
• The Ninth Circuit’s treatment of “substantial similarity” is, um, unique. It divides “substantial similarity” into “extrinsic” and “intrinsic” similarity. Yes, I know that sounds like something I made up. No, I didn’t just make that up.
• To prove extrinsic similarity, you have to show that the works are “objectively” similar. That clears it up, right? You’re allowed to dissect the works, use expert testimony, even rely on elements that are otherwise unprotectable.⁷There’s actually a good reason for this seemingly odd rule. If you think about it, exposure by itself shouldn’t be enough to prove access. You still have to prove that what was taken came from the underlying work, so you look for markers that show such access. Why isn’t this element part of proving access? Just the way Ninth Circuit law evolved, and we all just live with it.Much of the really interesting testimony in the case went to the issue of extrinsic similarity.
• Intrinsic similarity is best described as the jury’s gut instinct. Here’s the actual jury instruction: “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.” To prove it, you play both songs for the jury⁸In the “Blurred Lines” case, how Gaye’s song was to be played was the subject of tremendous debate. and hope they “feel” the songs are similar.
• The stronger the degree of access, the less strong the evidence of substantial similarity needs to be.⁹See Instruction No. 41. This makes some intuitive sense: increasing the similarity implies an increased likelihood of exposure; so increasing the proof of access means you don’t have to prove quite as much similarity.
• You don’t have to take very much of a work to infringe it, but the less you take, the more important the taking has to be. The jury must have thought the infectious bass line was a crucial component to Gaye’s song.¹⁰Bass players everywhere feel vindicated!
• Adding elements to a work doesn’t affect the similarity analysis. The focus is on what was taken from the underlying work, not what was added to the new work.
• The reason we ask the jury to make this gut determination is that we don’t want a technical definition of similarity. In a way, we want the determination to be economic: a jury knows best whether one work can substitute for another, i.e., hurt the market for it.
• The downside—and it’s a considerable downside—is that we don’t know what’s infringing unless and until a jury has rendered a verdict. We have little idea how any given jury arrived at its verdict, and there are very few jury verdicts involving songs anyway, so how do lawyers advise clients about “how far you can go”?
• Even then, the alleged infringers can save the day by proving independent creation. Practically speaking, though, this is really hard, because if the jury already has found access and substantial similarity, it’ll take more than just self-serving testimony to convince them.
• Although the Ninth Circuit’s extrinsic/intrinsic test weren’t formalized until 1977¹¹In a case involving the “H.R. Pufnstuff” children’s TV show and McDonalds., these tests have actually been in circulation for decades.
• One final thing: if an element is truly generic—i.e., it’s in every songwriter’s “toolkit”—then it isn’t eligible for copyright protection at all. In a case like this, it’s up to the accused infringers to present evidence that a given element is so common that it “belongs to everyone.”

If You Can’t Get Me Access, You Can’t Get Me Anything.

The floodgates of copyright litigation aren’t going to suddenly open because of this case,¹²The case isn’t even precedent, strictly speaking, at least not until it’s appealed. for two reasons. First, access, access, access, access, access, access. Access is usually very hard to prove. Remember, most of the proof of access rests with the alleged infringer, who has little incentive to remember any exposure he or she may have had to the underlying work. Usually, people won’t bring a case for copyright infringement unless they feel very confident about proving access.
In this case, the proof was actually pretty easy. Thicke told GQ Magazine, “Pharrell and I were in the studio and I told him that one of my favorite songs of all time was Marvin Gaye’s ‘Got to Give it Up.’ I was like, ‘Damn, we should make something like that, something with that groove.’ Then he [Williams] started playing a little something and we literally wrote the song in about half an hour and recorded it.”¹³I’d feel bad if one result of this case is that young creators can’t publicly geek out about their influences. This might be the gold-medal winner of proof of access. In three short sentences, Thicke just admitted that not only did have Gaye in mind, but he had “Got to Give it Up” in mind, and not only did he have that song in mind, but he had its “groove” in mind, and not only did he have the groove in mind, but the song was written almost immediately after. Worse, he put Williams in a box from which he couldn’t escape. Even worse, attempts to minimize or downplay this admission just makes you look like a liar (and juries hate liars).
With his level of access, only a minimal amount of substantial similarity would need to be proved. Judging from the comments to this side-by-side comparison,¹⁴I have to stress that the jury did not get to hear anything like this. For obscure (but important) reasons, the Gaye family was not permitted to play Gaye’s actual recording. As I understand it, much of his song was replicated live in court, but I don’t know precisely what the jury heard. reasonable minds can disagree about similarity¹⁵Though the opinions are frequently driven about how one feels about Thicke..

Après “Blurred Lines,” le Déluge? Non!

Second, we’ve had cases like this one for decades—George Harrison’s “My Sweet Lord” case and the Michael Bolton case come to mind—and they never led any flood of litigation.
OK, but why don’t more songwriters sue? Access aside, there are several reasons for this:

• There are disputes but they settle. Remember Sam Smith and Tom Petty and Jeff Lynne? You do, because I blogged about it, right? That settled, right? We only found out about it because someone leaked the details. Remember Joe Satriani and Coldplay? Settled. Huey Lewis and Ray Parker, Jr.? Settled.
• Songwriters are often a pretty tight bunch, and you don’t normally sue your peers and friends.¹⁶Did you know that the biggest driver of medical malpractice suits isn’t the medical outcome but how the patient felt about the doctor. If a patient really likes her doctor, she’s disposed to overlook mistakes, but if she doesn’t like the doctor, she’s disposed to find mistakes where perhaps none was really made. Same principle here.
• Besides, if X infringed Y’s stuff, how secure can Y be that he didn’t infringe someone else’s stuff? Does Y want to poke that hornet’s nest?
• Songwriters would rather make money by writing a new song than suing. “Someone ripped me off? That’s cool. Here’s another song.”
• Statute of limitations. Damages are limited to the last three years’ profits and lost earnings. By the time a songwriter (or the heirs) get around to thinking about suing, the infringing song has long stopped making any real money. Most songs have very short lifespans.¹⁷Led Zeppelin is an exception, obviously. “Stairway to Heaven” still makes enough money to be worth suing over.
• Oh, and copyright lawsuits are expensive, and lawyers won’t take them on a contingency unless (1) there’s a lot of money involved and (2) you’ve got clear evidence of access.

The mere fact that the Rolling Stones, or the Beatles, or whoever have chosen not to sue doesn’t mean that they have somehow altered the law.

Putting on Heirs

Heirs, like the Gaye family, are a different kettle of fish. Heirs are often much more aggressive about enforcing intellectual-property rights than the actual creator. For one thing, administrators of an estate actually have a legal duty to maximize the value of an estate, and enforcing and licensing intellectual-property is one obviously to do that.¹⁸Have you ever noticed that you hardly saw any merchandising of Dr. Seuss during his lifetime, but once he died, there were several (pretty bad) feature movies, merchandise, etc.? Perhaps more important, the heirs aren’t party of the fraternity of songwriters. They suffer no criticism by suing other songwriters. They cannot write another song to make more money—all they can do is enforce the copyright, and that means being aggressive.
With copyright terms extending to roughly forever, one might worry that we’ll see more lawsuits like this. But the statute of limitations is a pretty significant brake on such lawsuits. Infringing works created during the songwriter’s lifetime will have petered out by the time the heirs take control. And younger creators will have less and less exposure to the songs controlled by the heirs, making access harder and harder to prove. Again, this case was perfect storm: Gaye died relatively young, he remains a giant (so his influence lasts longer), and Thicke said what he said to GQ.
This also means that we don’t have to worry overmuch about the idea that we’ll run out of original bass lines, melodies, rhythms, etc. For one thing, songwriters are more creative than you think. But mainly, songwriters will continue to get away with most borrowings because it’s so hard to prove access, and songwriters don’t like to sue each other.

You Can’t Own a Genre

Further, if, say, a bass line really were generic, then no one can claim ownership to it. It can be a fine line between “original” and “generic,” especially in music. Can you take a standard three-chord progression that Chuck Berry developed? Probably—at this point, it’s in everyone’s toolkit.¹⁹Also, Berry probably got it from somewhere else. Courts do need to be vigilant about this, or else a genre of creative works can be starved of oxygen, but at the same time, creators who make truly original contributions to the genre deserve to be rewarded. That’s how copyright works. And the jury’s verdict here doesn’t threaten that balance.
Put another way: you are free to write funky R&B songs. Gaye’s family can’t stop you. This idea that Gaye’s family somehow owns a “genre” or a “feeling” is hyperbole, often from people who know better.
Effectively, Williams had the burden to prove that the elements he took²⁰I don’t need to say “allegedly” any more. were part of the R&B songwriter’s toolkit. Williams can offer up his own testimony, but juries will discount that as self-serving. So, he’d need to have an expert explain it to the jury, and play several examples to the jury of R&B songs that also have those elements. My understanding is that Williams did have such an expert, and the Gaye family had their own expert. The jury chose to credit the Gaye family’s expert more than Williams’. So it goes.

Final Thoughts

I think behind these criticisms is this anxiety: there is so much uncertainty about substantial similarity that it’s very difficult to know how similar is too similar. If Williams and Thicke had gone to an attorney before the release of “Blurred Lines,” told her that they really were inspired by a particular Gaye song (and Thicke just told the world that, by the way), and is our version different enough?—the attorney would not know what to say. You wouldn’t really know until the jury returned a verdict.
But the good news is that the “Blurred Lines” verdict isn’t going to change anything fundamental about copyright law. People freaked out about George Harrison. People freaked out about Michael Bolton. The fundamental, if fuzzy²¹No, I am NOT saying “blurred.”, copyright principles haven’t changed. The music industry (sadly) hasn’t changed.
How about this, though? If you really were disturbed by the “Blurred Lines” verdict, in a principled way²²Not because you dislike copyright law in general, love Pharrell Williams or make your living representing music clients., how could we change copyright law to prevent such verdicts, while still making sure that creativity is rewarded? Can you come up with something better than “total concept and feel”?
Thanks for reading!

Rick Sanders

Rick is currently General Counsel for Software Freedom Conservancy. Previously, he has been practicing law as an intellectual-property litigator since 2000.