Wednesday, March 18, 2015

3.19.15 WHAT'S GOING ON


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.

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