A few nights ago, social media was set ablaze after Natalia Kills (no idea who she is) passionately affirmed her unwavering support for “creative integrity and intellectual property” as a judge on the X Factor NZ. The Jessie J tribute act berated and accused contestant, Joe Irvine, of copying the dress sense and style of her husband, Willy Moon. The Commercial Cartel can confirm he is of no blood relation to national treasure, Alfie Moon. Willy proceeded to compare the aforementioned contestant to “Norman Bates dressing up in his mother’s clothing”. Three important points have been underscored by this fiasco. Firstly, Willy Moon obviously makes his mother wear a suit. Secondly, Willy Moon’s wife thinks he was the first man to wear a suit. And finally, copyright law is a hot potato at the moment in the entertainment industry.
Coined as the most controversial song of the decade and banned from Student Unions around the UK, ‘Blurred Lines’ has been a lightning rod for moral outrage and censorship. Last week, in one of the most important copyright cases in the music industry in years, the Gaye estate, represented by Richard S. Busch, triumphed over Mr. Williams and Mr. Thicke and their elite Los Angeles law firm, convincing a federal jury that the songwriters’ of the 2013 hit had too closely copied Marvin Gaye’s 1977 song “Got to Give It Up”. The jury awarded Gaye’s heirs $4m in actual damages plus $3.4m in profits that Thicke and Williams were found to have derived from their copyright infringement of Gaye’s work.
“Defendants have made a sufficient showing that elements of Blurred Lines may be substantially similar to protected, original elements of Got to Give It Up,” Judge John Kronstadt of the US District Court for Central California said. “Genuine issues of material fact are present as to the extrinsic similarity of the works. The intrinsic similarity of the works is a jury question,” he wrote.
Thicke, Williams, and T.I. released a statement expressing their disappointment with the decision.
“While we respect the judicial process, we are extremely disappointed in the ruling made today, which sets a horrible precedent for music and creativity going forward.
“Blurred Lines was created from the heart and minds of Pharrell, Robin and T.I. and not taken from anyone or anywhere else. We are reviewing the decision, considering our options and you will hear more from us soon about this matter,” read the statement.
All this got me thinking. Recently, I copy and pasted a tweet I found funny. Is this a copyright infringement? Surely not. Well, under EU law – or rather CJEU understanding of EU law – the answer should be in the affirmative. In its 2009 decision in Infopaq, the court found that copyright may subsist in a text extract of 11 words and – more in general – it subsists whenever a work is its author’s own intellectual creation. As fans of all things EU copyright will know, the EU standard of originality has been subsequently defined further, and found to involve ‘creative freedom’, a ‘personal touch’, and ‘free and creative choices’.
Across the pond, although the US Copyright Act refers to the requirement of originality, the seminal decision of the US Supreme Court in Feist rejected the ‘sweat of the brow’ approach. The standard of originality under US law is so minimal to be (almost) neglible…
Nonetheless, returning to the music industry, upon the release of Sam Smith’s “Stay With Me” in April 2014, a number of listeners were quick to note the distinct resemblance to Tom Petty and the Heartbreakers’ 1989 classic “I Won’t Back Down”. As it turns out, Petty’s lawyers also took notice, and the UK crooner has since agreed to pay songwriting royalties. Uh Oh.
With such a blurry line (pun fully intended), how can one distinguish between plagiarism and influence?
Ultimately, both cases have lowered the threshold of what counts as copyright infringement and stoked concerns among artists and producers. Songwriters’ paranoia about musical appropriation may potentially impede creative flow. Who knows, we might see Willy Moon suing every man in the City for wearing a suit in due course.
By Garry Caprani