For about five years there’s been a steady stream of infringement cases in the world of pop music. We’ve seen Katy Perry, Robin Thicke, Justin Timberlake, Lizzo, Juice WRLD, Carrie Underwood, Justin Bieber, Ed Sheeran (repeatedly), Taylor Swift, Miley Cyrus, and Childish Gambino, off the top of my head, all in the news facing infringement accusations.
Ariana Grande appeared in the news yesterday. “Yes!” you might say, “‘7 Rings’ is just “My Favorite Things” from Sound of Music!” No, it’s not that. Grande properly signed away nearly all of her future earnings from “7 Rings” for the license to sing it to the tune of “My Favorite Things.” She’s actually being sued over what little of that track is NOT sung to “My Favorite Things;” accused not just by one, but two or three different artists (!) who think her chorus’s lyrical flow is too much like their own.
All these lawsuits have gotten composers and record companies a bit spooked. Just in the past week or so there were articles in both the New York Times, It’s Got a Great Beat, and You Can File a Lawsuit to It, and in Rolling Stone, How Music Copyright Lawsuits Are Scaring Away New Hits about it. The dire message in both, one that I’ve heard a ton since the “Dark Horse” verdict, is that these cases represent a distressing seismic shift in copyright and that we should all be concerned that creatives are feeling paralyzed and that the arts will suffer for it.
Copyright law is not supposed to do that.
Two cases in particular, “Blurred Lines” and “Dark Horse” are most blamed for having established this climate of fear and paralysis. In 2015, Marvin Gaye’s estate won a 7.3M verdict that said Robin Thicke and Pharrell Williams’ “Blurred Lines” was too similar to Gaye’s “Got To Give It Up.” Then more recently in 2019, Katy Perry and cowriters of her biggest hit “Dark Horse” lost a 2.8M verdict for sounding too much like a Christian rap track called “Joyful Noise.
Both of these verdicts made composers and musicians uneasy. And it makes sense that these high profile and big money cases might be what’s encouraging more and more lawsuits, (I do get more requests for consultations when these cases are in the news.) but even if more lawsuits mean more frivolous lawsuits, what’s the appropriate response?
Jon Caramanica, the author of that NY Times article, wrote that the musical connections of some of the songs in these suits are “flimsy at best.” But when he says about the “Blurred Lines” verdict, “Not only could you be held liable for theft, intentional or otherwise, but you now could be held liable for being influenced, too,” I think he probably doesn’t mean it literally; because you’d have to infer a lot.
I say, neither “Blurred Lines” nor “Dark Horse” set any meaningful precedents. There was no seismic shift in copyright law. The Marvin Gaye team by the way does not gladly cop to having successfully sued over Pharell being “influenced.” They fought on substantial similarity, not of a groove, nor a feel, nor a vibe, nor a style, but of the actual notes, as per usual. And as for “Dark Horse” despite a recent amicus by a bunch of music professors and musicologists which, first, blames the jury a lot, and second, hopes the court might reverse the jury’s opinion (I’ll eat my hat), and goes on at length (correctly) about how the extrinsic standard wasn’t met and therefore the intrinsic test should never have had its moment (read that as: “the notes didn’t match, so the jury should never have been asked whether the songs sound alike to their ears.”). So it was a big courtroom mistake. But that’s not how it went at all. Joyful Noise’s musicologist said the notes matched plenty, and he explained to the jury that that’s why the songs might sound the same to their ears. The jury understood, believed, and agreed. In other words, the plaintiffs in both of these cases educated and persuaded their juries. That’s the job; that’s our system. What’s new here?
DON’T GET ME WRONG
If you’ve ever read Musicologize before you know that I agree that these plaintiffs were super wrong about everything! “Blurred Lines” didn’t infringe on “Got To Give It Up,” and “Dark Horse” didn’t infringe upon “Joyful Noise.” But while these were terrible verdicts, the sky is still blue and not falling. You still cannot have copyright to a mere vibe, nor can you infringe just upon a style, nor can you be held liable “just for being influenced.” That doesn’t necessarily follow at all. And skip the unproductive, hyperbolic, and lazy alternative that goes, “All music is derivative! There’s only 12 notes! Now you’re telling me every new song anymore has to be 100% unique, otherwise, it’s infringement!?” No. Never was. Not all similarity is substantial enough to be an infringement.
I’m sorry, but it’s never going to be cut and dried.
One thing that is true is that it can be hard for laypersons and even most professional musicians to know the difference between what’s appropriate and what’s wrongful appropriation; let’s appreciate this. That’s why musicologists are involved in these cases. And that’s why increasingly we’re being asked to evaluate originality of music before release to proactively assess and avoid or at least mitigate risk. It’s not simple stuff. It’s just not.
It’s also true that the music itself is a contributing factor. Caramanica wrote in his Times article about a lack of appreciation and understanding for the way pop music mostly evolves, where each iteration strives to have one toe in new novel territory but remaining mostly in a place of comfortable familiarity and thus, appeal and marketability. He’s obviously right! Over in the Rolling Stone article, Ross Golan, a super talented and successful songwriter responsible for tons of big songs by famous artists, was quoted saying, “Music is now more similar than it is different, for the first time.” He added, “People are using the same sample packs, the same plug-ins, because it’s efficient.” He’s right too!
To which I might add though, “Copying is efficient too, and whether it’s intentional or not, it’s both wrong and illegal. So, don’t steal, regardless of your genre. Work harder. Be better. If you write ridiculously derivative music, the risk you bring onboard is often deserved.
And in that same Rolling Stone article, Joel Timen, vice president of A&R and publishing at Curb Word Entertainment, was quoted saying, “A lot of my songwriters have been asking more questions: ‘Does this melody or pre-chorus section remind you of anything? Should we be careful?’”
Yes, please do be careful! Nothing new there. If your melody reminds you of something, make sure it isn’t too much the same as that something. If it is, scrap it or change it! Sorry, but that’s the deal! Always was.
Copyright law meanwhile is intended to serve the greater good. The constant evolution of music, and art more generally, is part of that “good.” Is the world not better off when Danger Mouse mashes up The Beatles’ “The White Album” with Jay-Z’s “The Black Album” and makes “The Gray Album?” We can’t be oblivious to modern music-making, tastes, style, the art, and the techniques that drive and enable it. Overprotecting is bad. Maybe some evolution is in order for copyright. Maybe modern music style demands it.
Another great Times article by Ben Sisario, ‘Blurred Lines’ on Their Minds, Songwriters Create Nervously quoted songwriter Evan Bogart, who has written for Beyoncé, Rihanna, and Madonna, saying “I shouldn’t be thinking about legal precedent when I am trying to write a chorus.” And that’s fine. If he’s mindful of originality but is tied up because all the boundaries have been blurred out — the net effect of a wave of bad verdicts and spurious lawsuits — indeed it’d be a shame if instead of writing a great and original hook, he’s too wary his pinky toe might brush against a landmine. We don’t want that. We want him writing great hooks for us all to groove to.
Getting a little far afield here, but it’s worth watching the respective incentives of plaintiffs, lawyers, intellectual property squatters, and copyright trows, which are encouraging more frivolous lawsuits. Are we incentivizing IP squatters? We REALLY don’t want someone stalking Mr. Bogart, ready to slip a landmine beneath him in a “gotcha” sorta way. What if I run over to royalty exchange, and I comb through looking for songs that sound a little like other songs, buy up some rights, and go sue somebody! Nevermind the right and wrong of it, what’s the math? What’s my ROI?
Copyright law seeks to protect creators’ exclusive rights to their works (encouraging creativity) but without overprotecting such that creativity is scared and stifled. It’s a balance, and maintaining that balance might require adjustment. A bit like cybersecurity, which was also in the news today; copyright law and the justice system may need to adjust to stay a step ahead of industrious IP squatters and discourage frivolous lawsuits.
So some thinking is in order. But copyright hasn’t turned on its head. Go write some music.