Now that we’ve had a week to digest arguably one of the most significant copyright infringement cases in music this decade (if not in entertainment since all fields – film, TV, video games, and content creators – are concerned with copying works), I wanted to give my opinion on what I think are the valuable take-aways.

I believe that if the decision in this case holds through the appeal process, it will become a heavily referenced case for every field that relies on copyright protection.

In my younger days as a lawyer, I was involved in the seminal Bridgeport Music case that officially ended snippet record sampling without a license (Bridgeport was also involved in this case but settled), so I have been following this case closely to see if the outcome here would be similar, and officially end copying musical compositions without a license.

In the Bridgeport Music case, the court said with respect to recorded music sampling:

“Get a license or do not sample. We do not see this as stifling creativity in any significant way.”, and it appears that this same perspective was adopted by the Blurred Lines court. 

To recap, last Tuesday a jury decided that super-producer Pharrell Williams and recording artist Robin Thicke, both songwriters of the mega-hit from 2013, Blurred Lines, infringed on (copied) the old-school hit from 1977, Got To Give It Up, written by Marvin Gaye.

Williams and Thicke were ordered to pay Mr. Gaye’s estate (who died in 1984 so his heirs own his music) $7.3 million in damages.

You have probably heard about it in the news because the decision has created an uncomfortable bright line for artists and publishers when determining where creativity ends and copying begins.

 

I’m actually a big fan of Pharrell. I worked on a number of his earlier deals when I worked in Legal Affairs at Virgin Records (I also think that Robin Thicke is ok). And I am a 70’s baby so I have nothing but the utmost respect for Marvin Gaye.

But, I’m a lawyer first and can’t allow my feelings as a fan interfere with the legal aspects of the case. I have primarily been following this proceeding so that I can advise my clients on what they can and cannot do because I represent writers who fall on both sides of this issue.

Now that it is over, there are many important lessons all of us in the Music Business can learn from the Blurred Lines Case.

Everyone in the industry needs to understand what this case means so that they can adjust their business practice accordingly!

 

So, below are 8 of my observations on what the most important lessons learned from the Blurred Lines decision.

 

1.) 7.3 Million Reasons Why You Should Handle Your Business

The jury in this case decided that the Gaye family was entitled to $7.3 million dollars, which breaks down to $4 million in damages, a $3.3 million share in the song’s profits, and a measly $9,000 in statutory damages.

I read that the jury determined that 50% of the elements in Got To Give It Up are, in fact, part of Blurred Lines. I think the percentage of elements and the damages award should be higher, but Williams and Thicke can thank their lawyer for that low number.

In case you didn’t know, the songwriter’s attorney won on a motion to prevent the jury from hearing the radio version of Got To Give It Up when they comparing it to the radio version of Blurred Lines. The jury heard a stripped down recreation of Got To Give It Up, probably like the version you hear a cheesy guy sing at a dive bar in Vegas at 2am.

If you listen to the commercial versions side-by-side, what percentage would you choose? Let me know what you think.

There are more costs and consequences ahead for the songwriters. Blurred Lines is still a massive hit and the recent publicity (and the publicity that will come about when the verdict is appealed) will only re-invigorate the song’s play and sales, but that momentum may come to a halt.

The Gaye family is now attempting to stop future sales of the song unless the songwriters agree on terms for future sales, and there will most definitely be a motion to collect attorney’s fees. Williams and Thicke will also likely appeal (which I predict they will lose), so the songwriters are going to continue bleeding or losing money beyond the verdict amount.

The next time you complain about the fee quoted for a sample license and consider bypassing that step, make sure you re-read this post, come to your senses, and secure the license. That goes for other agreements as well. If you cannot afford a music entertainment attorney at this point in your career, at least get a package of inexpensive music agreements so that you can avoid legal problems.

 

2.) Celebs Don’t Mesmerize Jury’s In Civil Court

Unlike in criminal proceedings where celebrities have successfully gotten out of crimes likely due to jury love, civil court is different.

In this case, Robin Thicke crooned the jury in an attempt to show that there are many similar songs. I’m sure it was a great concert (especially for the women) but literally once the music stopped, the harsh realities of civil litigation prevailed. It’s all about the evidence in civil court to prove a case.

Also, I believe that Thicke’s demonstration may have actually hurt his case. Just because two similar-sounding songs did not go through a public litigation does not mean that there was not an informal claim of copyright infringement.

I’ve sent or received hundreds of copyright infringement cease and desist letters, but usually these claims are ultimately settled amicably or the accuser can’t fund litigation. Either way, the public would never know.

 

3.) Don’t Bring a Preemptive Lawsuit When Your Case Isn’t Strong

Did you know that Thicke and Williams initiated this lawsuit? They filed a lawsuit against the Gaye family asking the court to declare that Blurred Lines was not similar to Got To Give It Up, and the Gaye family filed a counterclaim. Now, I think it is reasonable to assume that when you play the two songs side-by-side, there is some similarity. This was obviously a tactic by the songwriters to strike first, but it wasn’t a good look.

The Gaye family lawyer masterfully characterized them as being bullies, trying to bleed them dry so that they could not bring a suit of their own. Well, if you know anything about Marvin Gaye, he was no wimp, and apparently those genes were passed down to his children.

Growing up, we use to say “Don’t Start None, Won’t Be None”. I guess the songwriters (or their advisors) never heard that one.

 

4.) Litigating In The Press Is Different From Litigating In Court

The theme of the songwriter’s position was that they did copy the “feeling” of the 70’s, which Marvin Gaye happened to be part of, but they did not infringe on the copyright of Marvin Gaye’s song. We have heard this position from the songwriters for months, but at trial we got to see how copyright infringement technically works.

I mentioned the legal maneuvering by the songwriter’s attorneys above related to what version of the songs was played in the courtroom. We also saw the testimony from dueling musicologists who analyzed the signature phrases, hooks, keyboard-bass interplay, lyrics, and themes of the two songs. Then we heard from music licensing professionals who discussed the practice of licensing and leverage.

I’m glad that the media gave a glimpse into the technical nature of the case. Music lawyers don’t just listen to music all day and hang out with cool clients. With the state of the U.S. Copyright Act today (I believe that it needs to be re-written, not amended), the clear absence of a legitimate informal proceeding to resolve copyright matters, like the Trademark Trial and Appeal Board (TTAB) for trademarks and the Patent Trial and Appeal Board (PTAB) for patents, which help streamline disputes, coupled with the Act’s lag time behind technology, music law is one of the most complex areas in all of law right now.

 

5.) When Your Publishing Company Settles, Follow Suit

The publishing company is the big fish in any law suit. It can afford the top lawyers and has the political ties to “help” its position. When Sony/ATV Music Publishing (specifically, EMI April) settled with the Gaye family, that is a sign that the case may be legitimate and Williams and Thicke should have re-evaluated their position. I can’t fault Williams for fighting the good fight because his reputation was on the line. Also, financially, his company, Star Trek Entertainment, benefits from this song on the recorded music side so he really didn’t have a lot to lose, relatively speaking. I’m not sure why Robin continued on. He obviously wasn’t holding on so that he could give an all-star performance on the stand.

From what I have read, there would have been some really tough questions for the publisher if they would have remained in the lawsuit, which is probably why they settled. It’s unfortunate that the songwriters didn’t follow suit and had to take the fall alone.

 

6.) Don’t Go To Trial When You Have Something To Hide

Robin Thicke stated that he lied about being a co-writer. He also waffled in his statements, initially stating that he told Pharrell to create a song like Got to Give It Up; thereafter he said he wanted a song that “felt” like Got To Give It Up; thereafter he said he wanted a song from that era only without mentioning the song; and his final statement was that he had never had any conversation at all about what he wanted.

Not exactly the witness you want on the stand.

 

7.) If You’re The Defendant, Don’t Play Lawyer on the Stand!

Williams also testified about his song-creation process, admitting to jurors that Blurred Lines channels “that ’70s feeling” and that he looked up to Gaye, but that to feel isn’t copyright infringement. That’s what lawyers call a conclusionary statement.

If it were that simple there would be no purpose for the complex laws ☺

 

8.) The Music Industry Is Back Bae Bae!

Good news: the music industry is coming back strong! If you follow me, you know that I’ve been preaching for the past few years that album and record sales in the music industry are essentially dried up. After reading the revenue information from the trial, I must admit that was surprised.

Blurred Lines made 16.7 Million dollars from sales and licensing, and fueled another 11 million in touring! There are still mega hits being released and they generate a lot of money. Unfortunately, in this new era, there are a lot less of them.

So those are my thoughts. What do you think? Feel free to leave a comment with your thoughts on this situation. Better yet, let’s play a game. I can think of a number of current songs that are similar to the facts of this case. What about you? Tell me what recent song sounds similar to your old-school jam.

I’ll start. Listen to this and tell me if you agree or disagree that based on the Blurred Line case there may be a similarity:

Jungle Love vs. Uptown Funk – Copy?

 

 

Confused By Music Agreements?

 

Working as a music lawyer over the years, do you know what is still one of the toughest things for me to see?

When a talented artist or producer comes to me that is really starting to gain traction in their career (or an Indie Label with talent) but are haunted by some type of dispute from early days when they were first starting out.

Usually, it’s because they worked on music projects with either a poorly written contract or no contract at all.

At the time, it probably seemed like no big deal because there was no money coming in anyway, right?

And maybe you were collaborating with your best friend or family member.

There is no way you guys would ever let something like money come between you, right?

Well, let me tell you from experience. No matter how close you are with your collaborators, you should always have a solid written agreement in place!

I have seen it all. Disagreements between best friends, uncles and nephews, cousins, lovers, and even between artist’s parents (the artist was a minor) and grandparents.

Common disputes include questioning who owns the copyright in the recording and disagreements over the composition ownership splits.

I have even worked with well-known artists and producers who have known each other for decades and still proceed to argue over thousands of dollars (when one or both have millions) because they did not have solid agreements in place.

I realized that most of the problem is when people are first starting out they don’t have the money to pay an entertainment attorney to put those agreements and contracts together for them.

That’s why I decided to release a FREE EBOOK: How To Make It In Today’s Music Industry (it includes a bonus Split Sheet Agreement!)

In the book, I go over how to brand, protect and monetize your music business.

But back to this article and the importance of having agreements.

Below are 6 important agreements you should focus on getting together right away, no matter what stage you are in your music industry career.

Infograph: 6 Agreements Every Music Pro Needs

 

Want to share this image on your site? Just copy and paste the embed code below:

<br /><br /><br /><br /><br /><br /> <img src=”http://www.lawyersrock.com/wp-content/uploads/2015/03/LR-6-Music-Agreements-Infographic.png” width=”540″ alt=”6 Agreements Every Music Professional Should Have In Their Toolbox”><br /><br /><br /><br /><br /><br /> <a href=”http://www.lawyersrock.com/music-license-agreements/”><br /><br /><br /><br /><br /><br /> </a></p><br /><br /><br /><br /><br /> <p><strong>6 Agreements Every Music Professional Should Have In Their Toolbox</strong>, courtesy of <a href=”http://www.lawyersrock.com/music-license-agreements/”>Lawyers Rock</a></p><br /><br /><br /><br /><br /> <p>

 

 

1. Work-Made-For-Hire Agreement with Waiver

What is it?

This is a general, all-purpose form that ensures that you don’t accidentally relinquish rights to people who contribute to your music. This form also includes a waiver in case the hired person is signed to a company (i.e., production company, label, publisher).

 

Why is it so important?

U.S. Copyright law requires any work-for-hire relationship to be in writing. If it is not then all contributors are considered partial owners of the copyright!

For example, if you hire a vocalist to sing a hook and you don’t have her sign an agreement, the vocalist can claim ownership in your recording of the performance, and potentially hold up the release of your music.

 

 

2. Music Collaboration Agreement

What is it?

This is a general form that may be used in instances when a music producer is collaborating with a recording artist to create a recording. This particular agreement shows the producer creating the “beats”, and the artist both performs and is the songwriter.

 

Why is it so important?

It is critical that when you collaborate you have a formal agreement about the percentages of ownership. In my template music collaboration agreements, the parties agree to each own 50% of the final recording.

 

 

3. Songwriter Collaboration Agreement

What is it?

This is a general form that may be used in instances when two (or more) songwriters are collaborating to write a musical composition. This particular agreement shows the writers administering their own shares.

 

Why is it so important?

Without the splits clearly defined, there is a chance for a dispute. For example, if you and a co-writer write a song you both may have a different idea as to what the splits are.

Does each writer own 50%? Does one writer receive a larger ownership percentage because he or she wrote the hook?

These are all questions that should be decided early on. If there is a dispute then you will not be able to properly register the composition with your performing rights organization (ASCAP, BMI, SESAC) and they will not be able to pay you royalties!

 

 

4. Side Artist Agreement

What is it?

This is a general form that may be used in instances where a side artist is engaged to contribute vocals to a recording. This particular agreement allows the side artist to keep ownership of any lyrics he or she may write.

 

Why is it so important?

Any of the scenarios from 1, 2, and 3 could happen without a proper side artist agreement in place.

 

 

5. Split Sheet Agreement

What is it?

This is a simple one-pager form that can be used to show the division of a musical composition (i.e., writer’s shares and publisher’s shares). It’s great to have on hand when you are registering your compositions with ASCAP, BMI, or SESAC

 

Why is it so important?

Similar to not having a Songwriter Collaboration Agreement in place, you will not be able to collect royalties if there is a dispute over splits.

Having this one-pager filled out and signed by all parties can save you from a ton of headaches down the road.

 

 

6. Mechanical License

What is it?

This is a general form that may be used when a writer or producer is granting a record company the right to use a musical composition.

 

Why is it so important?

Many times writers/producers do not know that a record label will not pay mechanical royalties unless a mechanical license is in place.

 

Hope you enjoyed this article. Again I highly recommend you download my FREE EBOOK How To Make It In Today’s Music Industry that also includes one of the most important agreements, a Split Sheet as an extra bonus for you.

I really encourage you to protect your work no matter what stage you are at and look into getting these type of agreements to protect your music business.

The time and money you invest in it now will be much better than trying to find someone like me in the future to clean up the contract.

Now that will cost you a lot more time and money!