The Newfound Fear of Music Plagiarism
Since the 2015 “Blurred Lines” decision,[1] finding songwriters Robin Thicke, Pharrell Williams and Clifford Harris, Jr. (aka T.I.) guilty of copyright infringement of Marvin Gaye’s “Got to Give It Up,”[2] there has been an increase in fear of plagiarism for music creators due to the uncertainty of the line between inspiration and plagiarism. With the “Blurred Lines” decision being called a “dangerous precedent”[3] for basing its decision heavily on the “concept and feel” of the two songs’ similarity (a subjective test)[4] rather than identical musical notation or melody (an objective test),[5] there is a concern that there will be an increase in music plagiarism cases.
This concern seems to be setting into action with recent plagiarism issues on songs such as Ed Sheeran’s “Photograph,”[6] Ariana Grande’s “One Last Time”[7] and Led Zeppelin’s “Stairway to Heaven.”[8]
In light of this, music creators are pushing back and supporting Thicke, Williams and T.I. in the appeal of the case, hoping to overturn the verdict.[9]
In the August 30, 2016 amicus brief submitted to the Ninth Circuit in support of Thicke, Williams and T.I., over 200 music creators, including artists such as Earth Wind & Fire, members of the band Train and Jennifer Hudson[10] argue that the “Blurred Lines” decision will hurt the future of music creation if not overturned.[11] “If an artist is not allowed to display his or her musical influences, for fear of legal reprisal, there is very little new music that is going to be created, particularly with the limitations that already naturally exist in songwriting.”[12]
The creators argue that “[a]ll music is inspired by other music and that “copyright law should not inhibit songwriters from celebrating their influences,” specifically noting that Marvin Gaye himself was known to be influenced by Frank Sinatra, Nat “King” Cole, Ray Charles and others.[13]
The brief states that “in typical music copyright cases – at least successful ones – the two works share the same (or at least similar) sequence of pitches, with the same (or at least similar) rhythms, set to the same chords.”[14] The music creators argue that this case is “unique in that the two works at issue do not have similar melodies,” nor do the the two songs share a single melodic phrase.[15] To avoid a fate of increased plagiarism cases, music creators advocate for a bright line in music copyright, stating that there is legal clarity in film, television and book copyrighting cases and music should be no different.[16] The brief goes on to argue that a line needs to be determined “which will weed out the protectable elements from the un-protectable elements.”[17] This is especially important because musicians are more restricted than filmmakers and authors, as there are a limited number of notes and chords available to a composer.[18]
A separate brief submitted to the Ninth Circuit by numerous musicologists in support of a reversal states that this decision is likely to curtail music creativity, which is what copyright protection was designed to incentivize.[19] Strong support from the music industry is firmly encouraging a bright line in music copyright and the “Blurred Lines” appeal may be the way it comes about.
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