Wednesday, March 18, 2015


This article originally appeared in the 3.19.15 issue of Metroland.

            OK, so the Blurred Lines verdict came down and Robin Thicke, Pharrell, and TI were found guilty of infringing a Marvin Gaye song to the tune of $7.3 million.  Of course everybody had an opinion on this, with plenty of people, some of whom who are friends, otherwise intelligent beings whose opinions I generally respect, applauding the verdict.  I heard a panel of exceedingly smart people on the radio seemingly accept the verdict as correct, with one smart person saying “all they had to do was credit Marvin Gaye and give him a percentage and this would have been avoided.”

            Uh, no, that’s not how it works.  And there’s no reason Gaye should have gotten any credit or should get any money. The bottom line is that the verdict borders on insanity.  Ask any copyright expert who isn’t beholden to some corrupt special interest (and even some who are) and they’ll tell you.  Heck, I’ve been telling you for a couple years that this wasn’t a case.  Even Dean Kay, who’s been ringing the copyright maximalist bell for years with his e-mail news service Dean’s List (and with whom I agree on very little but like very much) is linking to articles declaring that the verdict was ridiculous.

            The matter will no doubt be appealed, and hopefully the case will be tossed.  Jury verdicts are notoriously difficult to overturn; appeals courts tend to bend over backwards to cede to the “wisdom of the jury” and all that.  But the better argument might be that, as I’ve pointed out here, and as Tim Wu argues emphatically in his New Yorker article “Why The Blurred Lines Copyright Verdict Should Be Thrown Out”, the trial judge erred in even letting this case get to a jury.  Many, if not most cases that don’t settle end at the summary judgment phase, where a judge can determine that no reasonable jury could possibly find for one or the other party.  And given what I’ve read, the “Blurred Lines” judge should have done just that.  No reasonable jury, applying the correct standards, could have possibly found that the Thicke & Co. infringed on Marvin Gaye’s song.

            Why not?  Well, as my pal the prominent musicologist Michael Harrington told a Nashville TV station "There were no lyrics, none. There was no melody, no chords. Not only is there no original expression taken, there is no expression taken."   Somehow, the jury, after being told that Pharrell and Thicke readily admitted to being influenced by the Marvin Gaye song, decided that since the songs had a similar groove and vibe that there must be infringement.  I wonder what the judge’s jury instruction (where he tells the jury what the legal standards are that must be applied to the facts) was.  Because either it was a horrible instruction or the jury ignored it.

            As Andy Herman wrote in his LA Weekly article “Great, Now Blurred Lines Has Ruined The Entire Music Industry”:
Musicians admit their influences all the time. And they should. There are only so many notes on the scale, only so many tempos and drum patterns, only so many harmonics pleasing to the human ear. Every song, no matter how great or how terrible, builds on the work of past artists.
The "Blurred Lines" verdict ignores this, placing for the first time what boils down to "feel" under the heading of copyright infringement. By this logic, the Bob Marley estate can sue pretty much every reggae artist of the past 30 years. The Bo Diddley estate can sue George Michael for "Faith" and Bow Wow Wow for "I Want Candy." Phil Spector can sue The Raveonettes for their entire catalog.

            Most commentators think that the jury was reacting to the douchey-ness of Robin Thicke, who by all accounts was swarmy and, well, douchey.  He claimed he didn’t write actually the song because he was drunk and high on Vicodin, basically trying to throw his onetime friends Pharrell and TI off the cliff.  What a nice man!

            But this wasn’t a popularity contest between Robin Thicke and Marvin Gaye, or for that matter Marvin Gaye’s kids, who by most reports conducted themselves in a fashion that could charitably be called low-rent.  This was an infringement lawsuit.

            What disturbs me is to see songwriter friends hailing the verdict.  What, they don’t have influences?  They don’t think that this verdict will open the floodgates and make every hit song a target, including theirs should they be so fortunate?

            My band used to do a ska version of Sam Cookes’ “Just Another Saturday Night.”  Then one day we stuck in some new lyrics and bounced the melody and harmonies around and voila, there’s a new song “Gimme The Girl.”  We recorded it and the day the record came out Dr. John Cooper on QBK played “Gimme The Girl” and followed it with “Just Another Saturday Night.”  Busted?  Yup!  Infringement?  Nope!

Paul Rapp is a lecherous ex-clergyman... no wait, that was Richard Burton in “Night Of The Iguana”... Paul Rapp is a dapper Berkshire attorney, semi-retired musician and fitness buff who doesn’t only sing but he dances.  Just as good as he walks.

Wednesday, March 04, 2015

3.5.15 NOT HAPPY

This article originally appeared in the 3.5.15 issue of Metroland

The “Blurred Lines” case, in which Marvin Gaye’s kids are trying to shake down Robin Thicke, Pharrell and TI, is in the midst of trial right now in LA.  It’s not going very well for Team Gaye.  The judge knocked the stuffing out of the Gayes’ case last month by ruling that the jury would not be allowed to hear the Marvin Gaye recording of “Got To Give It Up,” the song allegedly infringed by Thicke & Co. in writing “Blurred Lines.”

            Why, you ask?  Well it’s like this.  With any recording, there are two copyrights: one for the song, the composition, and another for the performance of that song, the recording.  What constitutes the song is typically limited to the melody and lyrics, and sometimes a unique chord or song structure.  Everything else is embodied in the performance.

            Here, the Gaye children are claiming that “Blurred Lines” infringes the song “Got To Give It Up,” which they own.  However, they do not own the recording of “Got To Give It Up.”   That is owned by Motown Records, which has the same parent company (Universal) as Interscope, which released “Blurred Lines”.  And Motown isn’t about to sue its cousin.

            What the Gayes are left with is what was submitted when the song “Got To Give It Up” was registered at the Copyright Office: sheet music.  That’s what they own, and that’s what they have to show was infringed by Thicke, Pharrell and TI.  Not Marvin Gaye’s voice, not the groove, not the background vocals, not the bass line, not the drum sound or the instrumentation.  The melody and lyrics.  Not a whole lot to go with.

            So it’s been a hard slog at trial, with the jury being presented with piano-and-voice versions of the competing songs, and with Thicke giving a mini-concert of the various songs he says influenced the songwriting process (a medley including "With Or Without You," "Let It Be," "No Woman No Cry" and "Man In the Mirror").  Then the jury had to suffer through the Gayes’ musicologist experts trying to tie the competing songs together, including comparing the “hook lines” “keep on dancin’” and “took a good girl” which both come “immediately after the bar line” and “share three out of four notes.”  What? 

            That’s the best the Gaye camp has got, apparently.   They also made a big deal out of the fact that Thicke, Farrell and TI listened to “Got To Give It Up” during the songwriting and recording process, which proves exactly nothing.   As Bert Sommer used to say “That’s show-biz babe!”  This lawsuit should never have been brought, and it never should have been allowed to go to trial.  We’re talking here about influence, not stealing, and if Marvin Gaye’s kids got a piece of every tune Marvin Gaye influenced, they’d all be richer than Warren Buffett.

            The trial should wind up this week and we’ll probably get a verdict sometime next week.

            You may have heard that a library in Trumbull, Connecticut (near Bridgeport) recently removed a recently-donated painting of Mother Theresa out of concerns of copyright infringement.  I guarantee you that this wasn’t a librarian’s decision, because librarians, every single one of them in the world ever, are so much smarter than this.  The trustees of the library, and any attorney they consulted, should be publically shamed, tar-and-feathered, or perhaps taken out back and whooped good.  And the same goes for the knucklehead reporters who were on this story.

            The painting showed Mother Teresa surrounded by numerous activist women, including Margaret Sanger, the founder of Planned Parenthood.  The painting had been in the library for months when complaints started coming in from local Catholic leaders.  The library appeared to be holding tough until someone mentioned there might be a copyright issue with Mother Teresa’s image, and down came the painting.

            The problem is that no one can own a copyright in a person’s image. And there’s no “right of publicity” claim here either, as Mother Teresa was a rather famous person and her image isn’t being used to sell things.   And then there’s the small issue that she’s a dead woman from India whose image has popped up in Connecticut.

            So the Catholics came up with a scare tactic that smoked the ignorant and cowardly trustees of a little library and a piece of art got banished as a result.  I could see nonsense like this happening in Alabama or East Texas.  Or Iran. But Connecticut?  In 2015? Really?

Paul Rapp is an attorney ensconced in his mountain lair deep in the Berkshires, where he makes nougat, watches old movies, and drinks prodigious amounts of bourbon.