Will 'Blurred Lines' verdict make it harder to be a songwriter?

Melodies and lyrics have long been considered intellectual property, but the ruling against Pharrell Williams and Robin Thicke may be the first time a court has ruled that a rhythm is copyright protected.

The jury decision ordering Pharrell Williams and Robin Thicke to pay $7.4 million to the children of the late Marvin Gaye is reverberating across the music industry.

Rapper Clifford Harris (a.k.a. T.I.) was also named in the suit but the jury found that he was not responsible for any infringement. Mr. Williams’s and Mr. Thicke’s attorneys have not said whether the artists plan to appeal the verdict that the two copied elements of Mr. Gaye's 1977 hit, "Got to Give It Up” in their 2013 summer staple, "Blurred Lines." The Gaye family is expected to seek an injunction, which would open the door to receive additional royalties from future revenue generated by the song.

One of the most stunning aspects of the case is the fact that it even made it to trial. Typically, such copyright challenges are handled out of court with a writing credit and an undisclosed amount of cash.

“What the jury ultimately decided in the ‘Blurred Lines’ case is far less important than the fact that the jury had an opportunity to render a verdict at all,” writes David Gold, an intellectual-property attorney at Cole Schotz P.C., on the company’s legal blog.

He says given the tremendous cost of prosecuting and defending copyright infringement actions, many, many claims are settled early on. Those that are not settled are routinely decided without trial.

The most famous case of musical copyright infringement in the United States involved former Beatle George Harrison, who was found guilty in 1976 of unintentionally lifting the harmony for the song “My Sweet Lord” from The Chiffons’ 1963 chart-topper “He So Fine.” In the 1990s, M.C. Hammer was forced to retroactively add a writing credit for Rick James to “You Can’t Touch This” after the rhythm and blues veteran pointed out that the song was too similar to his 1981 single “Super Freak.” Most recently, vocalist Sam Smith agreed to give Tom Petty and Jeff Lynne a songwriting credit after similarities between his Grammy-winning “Stay With Me” and Mr. Petty’s 1989 song “Won’t Back Down” were pointed out.

The verdict in the “Blurred Lines” case shocked many in the music industry, partially because of the sheer size of the award, but also because the core issue of the case revolved around rhythm. Melodies and lyrics have long been considered intellectual property, but this may be the first time a court has ruled that a rhythm is copyright protected. Some music experts feel that this decision will make the future for songwriters and composers a lot more complicated.

“I am shocked, I think it’s a bad precedent and will create a lot of problems with the courts,” says Bonnie Hayes, chair of songwriting at Berklee College of Music in Boston.

She says her faculty will pore over the judge’s decision to try to decipher how to teach ways to avoid copyright infringement.

Composer and Babson College law professor Toni Lester says, “I’m happy to see that the jury took seriously the claim that when the ‘feel’ of a song is as creative and innovative as the kind developed by so many of the great black artists of the past on whose shoulders today’s popular artists stand, that that ‘feel’ is worthy of protection.”

Berklee’s Hayes agrees that great black artists have certainly not been adequately compensated for their enormous contribution to American and world culture, but cautions that such claims could go too far.

“I'd offer that you might have great black artists suing previous great black artists. Can Clyde Stubblefield's estate sue a current hip hop artist who does a funky drummer style beat? That's where we're heading. I don't think it's wrong to pay greats for infringements on their contributions – I just don't think it is the current copyright law.”

The fact that Gaye was a beloved musical icon who was murdered by his father may have played a role in the level of public sympathy afforded the plaintiffs.

“I suspect that it’s because the Gaye estate is something that recalls in people’s minds a great creator and artist, for whom people naturally have sympathy and respect,” says entertainment lawyer Jason Karlov of Barnes & Thornburg. 

“It’s human nature to ding the new successful guys in favor of the talent that created the canon. The legal principles have not changed, but the juxtaposition of young guns that make a lot of money against an estate that represents an artist who arguably never got his proper credit during his lifetime and died a tragic death, I believe, causes sympathy for the plaintiff.”