Recently, U.S. District Court Judge John Kronstadt ruled that Pharrell Williams did not commit perjury in testimony about “Blurred Lines” when it and his creative process were the focus of a copyright infringement lawsuit.
I know I’ve opined a lot about the song of the summer in 2013, and the 2015 trial in which it was found to infringe on Marvin Gaye’s “Got To Give It Up.” That judgment, I’ll remind you, was $5M. This subsequent motion came after Pharrell made comments thought to contradict his court testimony about “reverse engineering” songs as part of his process. It kinda makes sense that without the supposedly inaccurate testimony the court might’ve awarded summary judgment, a trial would’ve been unnecessary, so the Gaye’s want $3.5M in legal fees covered. And this is the second such filing. The Gaye family argued previously that Williams and co-creator Robin Thicke talked about Marvin Gaye and “Got To Give It Up” prior to trial. Thicke reportedly went into the studio and said flat out, “We should do something like “Got To Give It Up.” And I find that story entirely believable. But in depositions and throughout trial, as the new action describes it, Williams and Thicke were “adamant that neither “Got to” nor Marvin Gaye entered their minds when creating ‘Blurred.’”
The former action was met with a judgment that went something like: (my words; my summary) “What people say under fire and under oath is bound to differ from what they’d say in an Entertainment Tonight interview when they’re trying to promote a record. And we won’t hold them accountable for those inconsistencies.”
I think that’s probably right as far as it goes, but I don’t love that reasoning because I don’t think it gets to the heart of the matter, and I’ll get to that later. After losing at trial though, Pharrell is still talking about his creative process, and in the minds of the Gaye family, again demonstrating that his trial testimony was false. This is the interview for GQ magazine that prompted the new action. I presume it was put in print, but who has time for that? Here’s the video, already cued up to the important part. The other guy, by the way, is legendary producer Rick Rubin.
Or if you’re really in a rush, I’ll just tell you what he said…
He said, “Chad and I,” [He’s talking about his Neptunes days with producing partner Chad Hugo, I guess? Quite a long time ago.] “what we always tried to do was reverse engineer the songs that did something to us emotionally and figure out where the mechanism is in there… and try to figure out if we can build a building that doesn’t look the same but makes you feel the same way.”
And he continued, “I did that in ‘Blurred Lines’ and got myself in trouble.”
That’s bound to reignite ire in your adversaries.
And it did, here’s the motion. But the judge found the phrase “reverse engineering” to be vague and subject to multiple interpretations.
“Williams statement about ‘reverse-engineering’ could be interpreted as a process in which he remembers his feelings when listening to particular music, and then attempts to recreate those feelings in his own works. “
He also ruled, interestingly, that willfulness was not so important anyway.
“Even if Thicke and Williams each testified falsely about his state of mind when “Blurred Lines” was created, the question of willfulness was not a “central issue in the case.” Although the parties — in framing their arguments to the jury — addressed whether the conduct by Thicke and Williams was willful, this element of a claim of infringement goes primarily to whether enhanced statutory damages and attorney’s fees should be awarded. 17 U.S.C. § 504(c); see infra Section IV.B.4. For a copyright infringement claim, infringement, not willfulness, is plainly the central issue. Moreover, in this action, the Gaye Parties elected to seek actual not statutory damages. This also results in less significance on the issue of willfulness.“
That’s a bit to unpack, but two main concepts jump out for me.
First is that willfulness is not an end-argument toward infringement. Every day I’m reminded this is widely misunderstood. You can be intentional as all get out, and still not infringe. The concepts are separate. The resulting work infringes or it doesn’t, regardless of your intent. If it does infringe, then yes, willfulness is a multiplier of a sort. It may get you a statutory ruling. It might get you into a bit of extra trouble down the line. But if the work doesn’t infringe, it doesn’t infringe and intent becomes irrelevant.
The expression “reverse engineering” is, as the judge pointed out, applicable in various ways. If you mean it to include the reproduction of the original, well, that argues itself. But most of the time, the emphasis is on the deconstruction, close examination, and analysis of how something was made. Expressed this way, detailed listening by a creative musician can be reverse engineering. When I get a session (project files) or stems or tracks from existing works, and I’m analyzing it, I’m reverse-engineering things, beginning with the finished product, breaking it down into its parts, and seeing how it was built. I’m seeing how it was done. I’m almost certainly going to apply the parts I admire in my future work. None of that admits plagiarism. It’s studying.
There’s nothing necessarily wrong with anyone going into the studio with the expressed intent to make a song like “Got To Give It Up.” It’s that simple. That intention, not inherently wrong, may or may not lead to infringement and you can take this to the nearly absurd, “One may intend to copy, and fail at it.”
Still, of all the lessons from the Blurred Lines case, one is unfortunately prominent: Don’t go around saying you thought about another artist or song when you were writing yours. You’re just asking for trouble.