July 14, 2017 Musicology, Opinion No Comments

I’m a forensic musicologist and the Blurred Lines verdict was wrong.

Nevertheless, it is a historical fact, and a mildly unsettling one. But it shouldn’t be THIS unsettling. I’m hearing lawyers say things like “My client and I are of course operating in a ‘post-Blurred Lines world’ now, so we have to consider…”

And I get it. Any thinking attorney has to pay some consideration to this new math. The verdict forces us to reconsider what infringement might look like in the eyes of a jury. Litigation of course has always been multidimensional and one of main facets is always risk. If you can be better than your opposition at calculating risk, you have the upper hand. But we’re not accurately calculating now, not at all.

The question is (and this is exactly the question an attorney asked me in a recent conversation), “Is Blurred Lines an outlier? An aberration? Or is past prologue?!”

And my response was, “It’s both and neither, depending upon how you choose to look at it.”

The better question is “Why are we sent reeling from it?” What has changed?”

Nothing has changed! Juries were and are juries.

Why do we find ourselves questioning what we know about infringement just because one jury came back with a screwy verdict on an admittedly high profile case? It’s an overcorrection on an outlier stat. The sun does not revolve around the earth just because one jury said it does.

Juries are unpredictable! We didn’t know that? Of course we knew that. That’s the risk taken by both sides. There’s nothing new here. Why aren’t we more dismissive of this weird verdict’s lasting impact?

It’s not as though there weren’t enough x factors involved for us to discount this more properly. Let’s do it now!

  1. Mr. Thicke evidently did not comport himself very well.
  2. Mr. Williams was ill-advised to talk so much about his admiration for Marvin Gaye. Both came off snide and superior. They weren’t liked.
  3. The plaintiffs on the other hand, sympathetic.
  4. On top of that, Richard Busch and team were brilliant in preparation and in the courtroom. Things turned.

Again, what has changed? Nothing!

It’s a trial. Trial is risky. Risk can bite you. It can bite you to the tune of millions. Witnesses and lawyers plead cases that should be doomed at trial, and juries side with them.This was the world we lived in before that verdict. It didn’t change. The Blurred Lines verdict is an outlier. It’s prologue, but it’s not as significant as we’re making it. It was on TV and in the news, and so we naturally overemphasize it in our minds, but it’s time for perspective. Particularly in that it’s headed to appeal soon. The whole ugly thing is probably going to go away.

Seriously, can I get odds on this being overturned? I’ll probably take them. The paralyzing ambiguity is just indefensible. The odds would be as wrong as anything else about this.

Did O.J. Simpson do it? I really don’t know. It would be dishonest and unscientific to say I did.

But I know this one. I’m a forensic musicologist, an expert, I knew what infringement was before the verdict and I still do. Pharell and Thicke did not infringe upon the copyright of “Got To Give It Up.” They didn’t. It’s not debatable. It’s a fact. Sometimes these things are close, a matter of degrees. This isn’t close. We still live in the same world and the rules did not and must not change.

Let’s please not wring our hands over this much longer and lets let artists get back to writing music inspired percourse by the music that came before even if they might be a little reckless to admit it too loudly. Copyright law was written to enable that.

Written by brianmcbrearty