The outcome of the judgement in the matter involving Robin Thicke, Pharell Williams and Marvin Gayes’ estate has been widely criticised by many members of the music industry- and steps are now being taken by a body of musicians aggrieved by the decision in an attempt to overturn the courts findings.
In 2015, it was held that both Thicke and Williams were to pay 7.4 million dollars to the Gaye estate for what was considered a copyright infringement of Gaye’s song ‘Got To Give It Up’. However, it is widely recognised in the musical fraternity that the ‘infringing song’, Blurred Lines, is merely a reminiscent throwback to old school R&B and Soul music found within the modern era from which Marvin Gaye’s work itself was derived. For this reason, it is contended that the finding in the judgment relies on a misconstruing of the nature and extent of the rights Marvin Gaye enjoyed himself in that it allowed the Gaye estate to claim rights in the entire genre of music rather than Gaye’s own work. Little did the courts realise that war would be waged by the musical fraternity in an attempt to turn over this judgment.
Many have criticised the above judgment as it is believed that it completely eroded an artists’ ability to embellish their works by means of inspiration from earlier works or genres. An important principle in copyright law is that one cannot seek protection in the ‘underlying idea’ of a work. However, one may ask, if an artist cannot protect the ‘underlying idea’ of a work, how exactly is it justifiable that the Williams case was ruled in favour of the Gaye estate owing to the ‘sound and feel’ of the song? Herein lies the criticism that the judgment attributed the ‘underlying ideas’ of an entire genre of music of which Gaye merely contributed to, rather than protecting his particular work. In the same manner, if one was to believe that this judgment was reasonable, so too would Marvin Gaye be liable for copyright infringement as through his career he openly attributed much of his musical works to his fundamental inspiration rooted in artists such as Frank Sinatra, Nat King Cole and Billy Eckstine. In this instance, the perfect binary is drawn between supposed copyright and actual creativity, illustrating to what extent the claim for copyright was, in fact, over stated.
It has, therefore, been argued that the Williams case would have been more accurately decided if the comparison of the song “Blurred Lines” was held as a ‘fair use’ of the stylistic attributes of Gayes “Got to Give it up” rather than allowing for a disproportionate finding that allows for the Gaye estate to now claim rights in the entire genre concerned therein. As so eloquently put by Mark Twain, “there is no such thing as a new idea. It is impossible. We simply take a lot of old ideas and put them into a sort of mental kaleidoscope. We give them a turn and they make new and curious combinations. We keep on turning and making new combinations indefinitely; but they are the same old pieces of colored glass that have been in use through all the ages”. In line with this, it is arguable that the judgment was inherently incorrect as what should have been interpreted as inspiration from an earlier era of music was irrationally held to be an infringement – and as such disallows the ‘mental kaleidoscope’ called inspiration and creativity in the creation of music moving forward.
For this reason, 212 musicians have bandied together by pledging their support in an amicus brief of appeal in fear of the long-standing repercussions that this judgment will have on the industry. Some of the artists include Linkin Park, Jennifer Hudson and Train – all of whom are well renowned for their perfect balance between creativity and apparent inspiration and homage paid to earlier artists and genres of music as a whole. The fear and frustration of the musical community is easily summed up in the excerpt from the brief to appeal wherein it is stated “[We] are concerned about the potential adverse impact on their own creativity, on the creativity of future artists, and on the music industry in general, if the judgment in this case is allowed to stand,” the brief states. “The verdict in this case threatens to punish songwriters for creating new music that is inspired by prior works.”
The above-mentioned appeal will be an exciting battle to witness. One can only hope that the judgment will be overturned and recognised that the better approach to the problem is to recognise the work of both Gaye’s and Thicke as merely scenes a faire i.e. generic or ordinary within a particular genre of music. In a world where this can be acknowledged, inspiration and creativity may continue to exist as vital procedures in the creation of music, without the threat of facing an infringement claim by any predecessors within the same genre of music.
