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Categotry Archives: Legal Disputes

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May Music Legal and Business Roundup

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Categories: Articles, Business, Legal Disputes, Legal Issues, Music Industry, Tags: , , , , , , , , , , , , , ,

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Here’s a recap of my article’s this month:

 

May was actually a little quiet on legal issues making the news.  However, the big news was really a tragic one.  The world lost another amazing artist, Prince.  His death was unexpected and shocked his fans and all of us in the industry.  A great artist who leaves a great legacy.

Here’s the other top stories in music legal and business:

 

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March Music Legal and Business Roundup

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Categories: Articles, Business, Law, Legal Disputes, Legal Issues, Music Industry, Music Libraries, Music Publishing, Tags: , , , , , , , , , , , , , , , , , , , , , , , , ,

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March had several interesting music legal issues, but first, check out my most recent articles:

 

In other news this month:

 

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Erin M. Jacobson discusses the Kesha / Dr. Luke case on the Break the Business Podcast

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Categories: Legal Disputes, Music, Music Industry, Music Industry Interviews, Tags: , , , , , , , , , , , , , , , , , ,

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I was recently interviewed on the Break the Business podcast about the ongoing legal drama between Kesha and producer Dr.Luke.   Download or listen to the interview on iTunes  or Soundcloud.  The interview is on Episode 28 and my interview starts at 20 minutes into the show.

Have a question about your deal?  Contact Erin to book a consultation.

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February Music Business and Legal Roundup

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It’s February and there’s definitely been some legal activity in the music business this month.

First, check out my most recent articles if you haven’t already:

In other news:

And here are my favorite Grammy moments:

  • Bonnie Raitt’s cool and calm confidence as she walked out the Grammy stage and proceeded to own the stage during “The Thrill is Gone.”
  • Demi Lovato’s awesome performance of “Hello” in honor of Lionel Richie.

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January Music Business and Legal Round-Up

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Categories: Articles, Business, Copyright, Digital Distribution, Legal Disputes, Legal Issues, Music Industry, Royalties, Tags: , , , , , , ,

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I’m trying something new where I do round up at the end of the month of some interesting stories or issues that have occurred during that month in the music industry. Please let me know if you like this new feature believe in the comments below.

First, you’ll want to check out my articles for January:

In other news:

The reports are in from 2015, and the industry numbers are actually up thanks to streaming, although digital sales have dropped. Some artists, like Adele, have proven they don’t need streaming to sell records.

Although streaming has upped some numbers, the artists aren’t getting paid. Spotify was hit with two class-action lawsuits for failure to properly pay royalties. They have now just instituted a new system for tracking and paying royalties. Some accusations claim that Spotify has not properly licensed much of the music that it plays and further that Spotify apparently doesn’t know who to pay. While there are issues that sometimes arise in the industry where finding the proper rights owner can be difficult to find, the majority of rights owners are easily able to be located and paid by those who take a few minutes to look for them.

Spotify has enough money to fight these lawsuits and they’ll probably be some sort of settlement along the way, however Spotify should’ve put a system in place in the very beginning to ensure streamlined and proper payment. This seems like the beginning of a lot of legal hassle for Spotify, but if truly not paying legitimate royalty recipients, it’s a legal hassle that they deserve.

And here are some predictions for 2016.  Let’s see if they come true…

 

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How Do You Prove That Someone Stole Your Song?

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Categories: Articles, Copyright, Infringement, Law, Legal Disputes, Legal Issues, Music, Music Industry, Tags: , , , , , , , , , , , , , , , , , , , ,

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A lot of musicians email me claiming they have great cases for copyright infringement. Copyright infringement does happen, but there are more people who think they have a case than those who actually do. (Please note that I am not a litigator and the below explanation is only a general overview of the basic principles in a copyright infringement suit. Actual cases may include nuances not discussed in this article.)

In order to sue for copyright infringement, you must have your work’s copyright registered with the United States Copyright Office. You can register your works yourself (the online registration fee is about $35), but I recommend an attorney like me or a service like Indie Artist Resource to file the registration for you, as some of the questions and principles covered in the application can be confusing.

Keep in mind that under copyright law, two similar works can be created independently of each other without infringement. For example, two independent musicians on opposite sides of the country could create original and copyrightable songs that sound very similar to each other, without knowing each other or ever hearing each other’s music. After all, there are only so many notes and chords that can be played.

However, if you do feel someone has actually infringed your music, you will have to prove that you have a valid copyright and your work was sufficiently original to warrant the validity of that copyright. Next, you will have to show that the alleged infringer copied your work. The analysis for infringement involves examining these three areas:

1. Direct copying
Here, you would have to show that the accused infringer directly copied the first work when creating his subsequent work. There is often no way to show direct copying, so the courts will instead look at the next two areas described below.

2. Access
When direct copying cannot be proven, courts will often infer that copying occurred if it is shown that the accused infringer had access to the allegedly infringed composition. This can be proven by showing that someone had direct access to your work, such as if you gave a copy of the song directly to the alleged infringer, or gave it to someone who had access to that person, like a producer or label executive.

Access can also be shown if the prior work is widely disseminated, such as a famous hit played on the radio and well known by the public. Here’s an example of how access was surprisingly proven in a real case: In Bright Tunes Music Corp. v. Harrisongs Music, Ltd.,[1] George Harrison’s song “My Sweet Lord” was deemed to infringe on the song “He’s So Fine” recorded by The Chiffons in 1962.[2] The court didn’t require actual proof that Harrison had heard “He’s So Fine” before; it relied on the fact that “He’s So Fine” had the top position on the Billboard charts in the U.S. for five weeks and hit No. 12 in England in 1963[3] – coincidentally at the same time The Beatles were becoming famous.[4]

The court concluded that Harrison unconsciously plagiarized “He’s So Fine” when he composed “My Sweet Lord” because “his subconscious knew [the musical combination of notes] had worked in a song his conscious mind did not remember.”[5] The court went on to further conclude that it did not believe Harrison deliberately copied the song,[6] but ruled against him anyway because access to “He’s So Fine” was assumed due to its fame and the two songs had enough similarities to satisfy the court.[7]

Therefore, if you have written a song, but it is not well known by others and you have not given it to someone where you can show a direct connection to the person who supposedly copied your song, you don’t have a case. It’s not enough to write and record a song that only a small number of people have heard, and then try to file a lawsuit when something shows up on the radio that you think sounds similar, when in reality you have no proof to show the other person even knew of your song.

3. Substantial similarity
The third analysis looks at the similarities, if any, between the two songs. If the degree of access to the first song is high, the amount of proof required to show similarity between the two songs will be lower than if there was not easy access to the first song.

Here, a court will look objectively at which parts of the first song were allegedly copied, such as the melody, lyrics, etc. A court will also look at the subjective opinion of lay listeners, which is basically whether the average person would think the two songs sounded the same or similar enough when listening to them both.

This point in the analysis is where many people argue that it is supposedly acceptable to copy three notes of an existing composition or sample three seconds or less of an existing recording without infringing copyright. In fact, there are no such rules allowing this practice. Infringement is infringement.

If you have looked at the facts and can truly show that someone has either directly copied your song or has had access to your song, and their song is very similar to yours, then you will need to contact an entertainment/copyright litigator to discuss the potential merits of your case. Keep in mind that these lawyers do expect to get paid for their services, although there are a few who may be willing to take important cases on a contingency. Check with the lawyer on his or her practices.

Footnotes:
[1] Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177 (1976).
[2] Id.
[3] Id. at 179.
[4] Id.
[5] Id. at 180.
[6] Id. at 181.
[7] Id.

This post was originally published at Sonicbids.com.

Disclaimer: This article is for educational and informational purposes only and not for the purpose of providing legal advice. The content contained in this article is not legal advice or a legal opinion on any specific matter or matters. If this article is considered an advertisement, it is general in nature and not directed towards any particular person or entity. This article does not constitute or create a lawyer-client relationship between Erin M. Jacobson, Esq. and you or any other user. The law may vary based on the facts or particular circumstances or the law in your state. You should not act, or fail to act, upon this information without seeking the professional counsel of an attorney licensed in your state.

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How to Choose a Music Attorney Who’s Perfect for You

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Categories: Articles, Business, Law, Legal Disputes, Legal Issues, Music Industry, Tags: , , , , , , , , , , ,

 

Before choosing an attorney, you first want to determine whether you actually need a lawyer. The basic rule of thumb is that if you’re presented with a contract, or alternatively, if you feel your contractual or intellectual property rights have been violated, you need a lawyer. Once you’ve determined which services you would like that lawyer to provide, you’ll want to consider several factors to determine whether a particular lawyer is the right fit for your career, especially if this is your first time working with a lawyer.

Your attorney is your representative, and thus, an extension of you for business purposes. You want to choose someone you enjoy working with, is qualified for the services you need, has a rate you can afford, and who will reflect the right image to achieve your goals. Here are eight of the most important considerations when choosing an attorney.

1. Practice area

Is your lawyer a music lawyer, or is it your brother’s friend’s cousin who’s a real estate/personal injury/construction attorney and is willing to look over the contract for free? While this cousin’s generosity is appreciated, you need to say, “Thanks, but no thanks,” and hire an attorney experienced with music contracts. The entertainment industry has very specific contract terminology and industry practices that only pertain to the entertainment industry. This field is so nuanced that even music contracts and film contracts differ enough that some artists have different attorneys for their music and film deals. An attorney who does not focus on music and entertainment contracts will not be familiar with these industry-specific terms and will miss crucial points that separate a good deal from a bad one. This could cost you to lose copyright ownership and/or a lot of money in royalties in addition to other undesirable consequences.

2. Your needs as an artist

Different types of lawyers perform different services. Some lawyers are “transactional” lawyers that draft, review, and negotiate contracts, as well as advise you on career decisions. Having a lawyer handle your contracts is important because even though some contracts may seem fairly simple, contract language is actually very complex and can contain consequences unforeseen to the untrained reader (or drafter). Lawyers endure many stressful years of schooling and training to interpret this language and understand how it affects you. In practice, you may need an attorney to review or draft only one contract for you or you may need him or her to be an ongoing member of your team for all career developments and opportunities, as well as to work with your manager or agent if you have one. Many artist lawyers can also help you set up any business entities you decide to form.

Other lawyers are “litigators,” which means they handle lawsuits by either suing others on your behalf and arguing your case or by defending you from someone suing you. This is the type of lawyer you would hire when someone has violated your contractual or intellectual property rights. A lawyer who understands these types of lawsuits can assess whether you have a valid claim, if you have the proper proof needed to win your case, and represent you through a settlement and/or trial. Note that the ability to bring lawsuits is often regulated by a “statute of limitations,” meaning you’ll often only have a certain amount of time to file the suit. This amount of time varies depending on the type of lawsuit and sometimes by state, so it’s best to consult with a lawyer promptly.

Still yet, there are other attorneys who “shop” artists, which means that they submit your music to record labels and sometimes other music companies to try to get you a deal. Note that many attorneys do not shop, so it is wise to check the attorney’s website or ask the attorney for his or her shopping policy before requesting that the attorney shop you. Be careful here: some “shopping” attorneys will send out anyone’s music for a fee. Music companies know who these attorneys are often don’t take them or their submissions seriously because the company executives know these submissions are not based on the attorney’s genuine endorsement of the music.

3. Personality

Aside from skill, personality is the other most important aspect in choosing the right lawyer for you. You want to make sure:

  • You actually like this person
  • He or she communicates with you in a way you understand
  • He or she understands and keeps your career goals in mind
  • You feel that you can trust him or her
  • You feel he or she has your best interests at heart
  • You feel comfortable letting him or her handle your important business matters

4. Reputation

Just like you hopefully maintain a good reputation in the industry, you want your attorney to have one as well. You can do an online search for an attorney you’re considering to see if his or her website is appealing and professional. You can also find out if he or she has any articles published or does speaking engagements to get a feel for his or her expertise.

More importantly, you want to know whether your potential attorney is honest. You can’t always find this out upfront, but you can ask around to your colleagues to see if anyone has worked with that person and what their experience has been. Also, you can search the attorney’s name on the State Bar website for the state in which the attorney is licensed to see if any disciplinary action has been taken against him or her. Further, an online search may also yield some information in the form of articles or news stories if the attorney has been involved in any unsavory activities.

5. Negotiation style

When you envision your attorney, what do you see? There are many different negotiation and business styles and it’s important to consider which style fits your preferred attorney profile and your business image as an artist.

Some styles include:

  • Screamers: These attorneys scream at everyone to get the job done and intimidate people to get their way. Some are effective, and some are just plain annoying, actually hindering the progress of deals due to their unpleasantness.
  • Bulldogs: Similar to the Screamers, Bulldogs are tough, fierce, and stubborn. They may not scream, but they can be just as difficult.
  • Partiers: These are the ones you see partying on the tour bus with the band. Many music attorneys are actually frustrated musicians, so the Partiers fulfill their unmet dreams of fame by living vicariously through their clients. Partiers may still be great attorneys during the day, but it’s a personal preference whether you want your attorney partying alongside you after the show.
  • Friends: Many attorneys become friends with their clients. This may include hanging together outside of work, but it just may extend to asking, “How’s the family?” when on a business call. It can be up to you how much you want to discuss your personal life outside of work, but it can make for a more enjoyable business experience.
  • Paper-pushers: These are the ones who stay in the office pining over comma placement. If you’re not looking to socialize and just want someone to stick to drafting, this might be your pick.
  • Combination: Realistically, most attorneys are a combination of some of the above. Some attorneys might be nice until they have a reason to scream. Some may spend most of the time at the office but accept your invitation to the afterparty at next week’s show.

Again, it really is about how well you work with the person and what you want in your relationship with him or her. However, style is an important point because having an attorney with the wrong style may end up breaking deals instead of making them on your behalf.

6. Similar clients

You might consider an attorney who already has clients in a similar style and genre to your music.This isn’t essential, but it is a good starting point for an artist who does not currently know any attorneys and wants to do some research on who to further pursue. In addition, an attorney with similar clients may also have already established connections and relationships with other artists or companies you’d like to work with, which can work to your advantage.

7. Price

Attorneys have different billing rates that are usually based on their experience and number of years in practice. Some attorneys only bill hourly and/or require retainers (upfront payments of estimated fees), while some will also charge a flat fee or take a percentage of your income or a deal. Ask the attorney for his or her rates and fee structure. Take serious consideration of what the attorney quotes you and whether you can afford it. Attorney services can be expensive, but it’s important that you pay your attorney for his or her work as he or she has invested time and skill in completing tasks on your behalf, even if that task is answering questions over the telephone. Legal advice is not free; your attorney is providing you a service based on many years of training, knowledge, and experience.

8. Location

Attorneys are licensed by state, so you want to be cognizant of whether the attorney is licensed in your home state, as licensing restrictions may prevent an out-of-state attorney from completing tasks on your behalf or may require the involvement of another attorney licensed in your state, which can mean added fees for you.

While a lot of correspondence with your attorney can often be done over telephone and email, you may also want to make sure the attorney’s office is in a convenient location if you have to travel to his or her office.

Now that you’re aware of what to look for in an attorney, you might wonder where to find one. Next time, I will discuss how to find potential attorneys as well as options for musicians who need legal services but are not quite ready to add an attorney to their teams.

This post first appeared on Sonicbids.com.

Disclaimer: This article is for educational and informational purposes only and not for the purpose of providing legal advice. The content contained in this article is not legal advice or a legal opinion on any specific matter or matters. If this article is considered an advertisement, it is general in nature and not directed towards any particular person or entity. This article does not constitute or create a lawyer-client relationship between Erin M. Jacobson, Esq. and you or any other user. The law may vary based on the facts or particular circumstances or the law in your state. You should not act, or fail to act, upon this information without seeking the professional counsel of an attorney licensed in your state.

Erin M. Jacobson is a practicing music attorney, experienced deal negotiator, and seasoned advisor of intellectual property rights. Her clients range from Grammy and Emmy Award winners to independent artists, record labels, music publishers, and production companies. Ms. Jacobson also owns and oversees all operations for Indie Artist Resource, the independent musician’s resource for legal and business protection offering template contracts, consultations, and other services designed to meet the unique needs of independent musicians.

 

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Warner Music Group Submits Class Action Settlement For Digital Royalties Suit

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Categories: Legal Disputes, Legal Issues, Music Industry, Record Labels, Royalties, Tags: , , , ,

“The Warner Music Group has submitted a settlement to the class action lawsuit filed by artists who claimed they were entitled to be paid on a licensing bases instead of a royalty bases for download and mastertones.” Read the full article at Billboard.

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“Blurred Lines” — It’s the Hottest Case in This Place

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Summary of the Legal Saga

“Blurred Lines” by Robin Thicke, Pharrell Williams, and Clifford Harris, Jr. was released in March of 2013.  It quickly caught attention for it’s catchy hook; fun, danceable beat; and seeming similarity to Marvin Gaye’s “Got to Give It Up.”  (For ease of reading, I have referred to the writers of “Blurred Lines” as “Thicke,” but please note that all writers of “Blurred Lines” are included in the lawsuits discussed.  Instances involving Robin Thicke individually will be referenced as “Robin Thicke.”)

In May of 2013, Robin Thicke gave an interview to GQ magazine where he talked about how “Blurred Lines” came about, stating:

 “Pharrell and I were in the studio and I told him that one of my favorite songs of all time was Marvin Gaye’s ‘Got to Give It Up.’ I was like, ‘Damn, we should make something like that, something with that groove.’ Then he started playing a little something and we literally wrote the song in about a half hour and recorded it . . . . Him and I would go back and forth where I’d sing a line and he’d be like, ‘Hey, hey, hey!’ We started acting like we were two old men on a porch hollering at girls like, ‘Hey, where you going, girl? Come over here!’”[1]

On July 9, 2013, Robin Thicke told Billboard:

“Pharrell and I were in the studio making a couple records, and then on the third day I told him I wanted to do something kinda like Marvin Gaye’s ‘Got To Give It Up,’ that kind of feel ’cause it’s one of my favorite songs of all time.”[2]

At the beginning of August 2013, the song “Blurred Lines” and the album of the same name both reached No. 1 on the charts.  However, the success was not without turmoil.  There was a lot of controversy floating around that Marvin Gaye’s estate (managed by Gaye’s children) felt the song “Blurred Lines” infringed the copyright of “Got to Give It Up” and there was also talk of infringement of Funkadelic’s “Sexy Ways.”[3]  News reports stated that Thicke had offered the Gaye Estate a “six-figure settlement” to quash the case, but the family turned it down.[4]  In mid-August, attorneys for Thicke filed a lawsuit to win a declaration that “Blurred Lines” did not infringe on the copyright of “Got to Give It Up” and “Sexy Ways.”[5] Thicke took the approach that “Blurred Lines” evoked the same “sound”[6] as “Got to Give It Up,” but that it did not infringe any copyrights of Gaye’s composition.  Thicke accused the Gaye Estate of trying to claim ownership of an entire genre, as opposed to a specific work.[7]

“Sexy Ways” writer and Funkadelic leader George Clinton is on Thicke’s side.  He tweeted “No sample of #Funkadelic‘s ‘Sexy Ways’ in @robinthicke‘s ‘Blurred Lines’ … We support @robinthicke @Pharrell!”[8]

In further support of Thicke, George Clinton announced on Twitter that he was taking his position to TMZ.[9]   On TMZ, Clinton said he wishes he wrote “Blurred Lines,”[10] and admitted that in comparing Thicke’s composition to “Sexy Ways” he did “hear a similar tone of voice, style, and a few notes, but not enough to sue.”  Clinton also made it clear that it was his publisher, Bridgeport Music, who was suing on behalf of Clinton and that Clinton himself did not support the suit.[11]  When asked about the similarity between “Blurred Lines” and “Got to Give It Up,” Clinton saw where people would make the correlation, but said he would testify in defense of Thicke.[12]  Since then, mentions of any infringement of “Sexy Ways” have quieted.

In October 2013, the Gaye Estate (minus Marvin Gaye III)[13] responded aggressively to Thicke’s lawsuit.  The Estate not only maintains its claim that “Blurred Lines” infringes on the copyright of “Got to Give It Up,” but also has filed another claim asserting that Robin Thicke’s song “Love After War” infringes on Gaye’s song “After the Dance.”[14]  The Gaye Estate also argues that Robin Thicke’s song “Make U Love Me” is similar in theme to Gaye’s song “I Want You,”[15] although the Estate did not add this supposed infringement to the list of formal claims in the lawsuit.  The Gaye Estate even said that Robin Thicke has a “Marvin Gaye fixation.”[16]

In addition to going after Thicke, the Gaye Estate is also dragging EMI April (now owned by Sony/ATV) into the dispute.[17]  EMI is the music publisher for “Blurred Lines” and also the music publishing administrator for Marvin Gaye’s catalogue.[18]  The Gaye Estate accuses EMI of having a conflict of interest since it represents both songs, and chastises EMI for failing to bring a suit to protect “Got to Give It Up” and for trying to intimidate the Gaye Estate from bringing a suit themselves.[19]  This puts EMI in a very difficult position as one wonders how the company could assert complete loyalty to both songs, from which it stands to make a profit.  EMI understandably doesn’t want to rock the boat, but after this messy fight it may lose one or both clients as well as one or both songs – plus the related profits.

The Gaye family now also claims there was never a six-figure settlement offered to them and that was a false story planted in the press to make the Gaye family seem unreasonable.[20]

Thicke’s lawyer, Howard King, released a statement to The Hollywood Reporter saying the Gaye Estate actually has no standing to sue on this matter and that three musicologists have reported that while the songs sound similar, their notes are different.[21]  However, Judith Finell, another well-known musicologist issued a report stating: “The two songs’ substantial similarities surpass the realm of generic coincidence reaching to the very essence of each work,” and offers a preliminary conclusion that “‘Blurred [Lines]’ was not created independently of ‘[Got to] Give It Up.’”[22]

On November 26, 2013, Marvin Gaye III filed his own lawsuit for infringement of “Got to Give It Up” by “Blurred Lines’” and infringement of “After the Dance” by “Love After War.”[23]  Unlike his siblings, he did not include a claim against EMI.  He did also mention the “Make U Love Me” / “I Want You” similarity, as well as the undeniable relationship between Robin Thicke’s song “Million Dolla Baby” and Gaye’s “Trouble Man.”[24]

Analysis

Robin Thicke’s interviews with GQ and Billboard are not going to bode well for his position in this case.  Anytime one says that a certain work inspired his newly created work it is going to fuel the fire of the other side’s infringement argument.

Thicke’s primary filing was a surprising move, as usually the party accusing infringement files first.  In this case, the writers sought to declare their innocence before the other parties filed against them.  It’s an interesting approach and I applaud Thicke’s attorneys for their proactive nature.  However, that first filing probably came across to many, or at least to Gaye’s children, as an aggressive move that elevated the level of the dispute.  It may also look suspicious to some observers when a supposedly innocent party has to loudly announce his innocence despite the law providing for a person’s innocence until proven guilty.

The Gaye family retaliated hard and seems to want to show everyone that they are taking this seriously and won’t go down without a fight.  Some people have asked me whether this will still settle out of court.  The truth is that it might – one never knows the direction a dispute like this will take.  However, I think for that to happen the monetary figure would have to be substantially large and might also involve the Gaye Estate gaining all or a portion of the “Blurred Lines” copyright.  Aside from that, I think the Gaye family’s stance portrays an image that they are more than willing to go to trial if necessary and will battle this issue until the end.

As stated above, at least three of the musicology reports are supposedly in Thicke’s favor, but have not been released.  Conversely, Finell’s report is not in Thicke’s favor.  In lay terms, Finell’s preliminary conclusion means “Blurred Lines” does infringe on “Got to Give It Up.”  (Note:  This is my interpretation of Finell’s report and based upon the contents of the report alone.  While I do know Ms. Finell, we did not discuss the details of the case or her report.)

Under copyright law, two similar works can be created independently of each other without infringement.  For example, two independent musicians on opposite sides of the country could create original and copyrightable songs that sound very similar to each other, without knowing each other or ever hearing each other’s music.  After all, there are only so many notes and chords that can be played.  However, in an infringement suit, here are some elements a court would examine:

1.  Copying

 One would have to show that the accused infringer directly copied the prior work.  This can be difficult to prove and is a point of contention in this case since Thicke claims they were only trying to evoke a sound[25] and did not expressly copy Gaye’s song.  However, Robin Thicke’s interviews with GQ and Billboard don’t help their case since Robin Thicke specifically said that “Got to Give It Up” was his favorite song[26] and he wanted to create “something like that.”[27]

2.  Access:

Even if direct copying cannot be proven, courts will assume that copying did occur if it is shown that the accused infringer had access to the supposedly infringed composition.  This could actually be a slam dunk point for the Gaye family since Robin Thicke admitted it is his favorite song in the GQ and Billboard interviews.

However, even if Robin Thicke did not admit his love for “Got to Give It Up,” the song’s fame and prominence in pop culture would satisfy this element.  The song has been played on the radio and is widely known, so the court will make the assumption that Thicke has heard it simply because it is a famous song.

Here’s another real world example:  In Bright Tunes Music Corp. v. Harrisongs Music, Ltd.,[28] George Harrison’s song “My Sweet Lord” was deemed to infringe on the song “He’s So Fine” recorded by The Chiffons in 1962.[29]  The court didn’t require actual proof that Harrison had heard  “He’s So Fine” before; it relied on the fact that “He’s So Fine” had the top position on the Billboard charts in the U.S. for five weeks and hit No. 12 in England in 1963[30] – coincidentally at the same time The Beatles were becoming famous.[31]  The court concluded that Harrison unconsciously plagiarized “He’s So Fine” when he composed “My Sweet Lord” because “his subconscious knew [the musical combination of notes] had worked in a song his conscious mind did not remember.”[32]  The court went on to further conclude that it did not believe Harrison deliberately copied the song,[33] but ruled against him anyway because access to “He’s So Fine” was assumed due to its fame and the two songs had enough similarities to satisfy the court.[34]  For those of us well versed in Beatles trivia, it is also known that the lads were fans of the early-60s girl groups and Phil Spector’s production style, later hiring Spector to produce the album “Let It Be.”  In an ironic and amusing turn of events, Harrison eventually purchased the copyright to “He’s So Fine,” making him the owner of both compositions.

3.  Substantial Similarity:

Another factor to look at is whether a lay person (i.e. a regular music listener) would view the two songs as similar.  Again, Finell’s report shows that the two compositions are very similar to each other, and much internet buzz has shown that most listeners are immediately able to pick up on the similarity (provided they are familiar with Gaye’s song).

To further complicate matters, it seems Robin Thicke has a pattern of releasing songs that sound like songs by Marvin Gaye.  A simple online search yields several websites showing the undeniable similarities between “Million Dolla Baby” and “Trouble Man,”[35] as well as the other three mentioned compositions.  However, Robin Thicke had permission from the Gaye Estate for “Million Dolla Baby” and the song credits list Gaye as a writer.[36]  Therefore it is probable the family is receiving royalties for that song and thus would not sue for that composition.[37]  What bothers me as a music appreciator is that I like some of Robin Thicke’s music.  With this pattern cropping up of multiple songs sounding like Gaye, I think it makes him lose credibility as an artist/writer and may end up hurting his career.  There is already talk within the industry that he may not win awards this season because of this legal battle.  It would be sad to see him lose future success because of this emerging pattern.

The first time I heard “Blurred Lines,” I realized the similarity to “Got to Give It Up,” but personally felt that it was evoking a sound more than direct infringement.   What strengthens the “evoking a sound” argument is the number of other songs that also have similar elements to both “Blurred Lines” and “Got to Give it Up.”  “Sexy Ways” was released in 1974.  “Got to Give It Up” was released in 1977.  The Jacksons then released “Shake Your Body (Down to the Ground)” in 1978, which has a similar “woo!” to “Blurred Lines.”  Michael Jackson’s 1979 hit “Don’t Stop ‘Til You Get Enough” has yet another similar “woo!” as well as a similar rhythm and use of cowbell as “Blurred Lines.” Marvin Gaye didn’t sue Michael or any of the other Jacksons for these songs, which made me wonder why Thicke is now a target for “Blurred Lines.”  Also, all of the songs just mentioned (with the exception of “Sexy Ways”) are from 1977-1979.   The 1970s was a distinct era and had a recognizable sound that “Blurred Lines” does evoke.

Some of my colleagues think it would be a travesty if federal judges did not police copyright more strictly and rule against Thicke in this case, fearing that it could allow more cases of actual infringement to slide through the cracks, or worse, be deemed acceptable and set a precedent for others to willfully infringe.  On the other hand, part of the purpose of copyright is to create a benefit or award to creators[38] of “original works of authorship,”[39] but that protection is also limited in duration.  Copyright is not meant to stifle creativity, so I think the challenge in this case is balancing the protection of existing compositions without stifling the creation of new works.

There are a variety of possible outcomes in this case and I will continue to provide my analysis as more details emerge.



[1] Stelios Phili, Robin Thicke on That Banned Video, Collaborating with 2 Chainz and Kendrick Lamar, a and His New Film, GQ, May 7, 2013, http://www.gq.com/blogs/the-feed/2013/05/robin-thicke-interview-blurred-lines-music-video-collaborating-with-2-chainz-and-kendrick-lamar-mercy.html.

[2] Gary Graff, Robin Thicke on Wife’s Impact on ‘Blurred Lines,’ Not Touring America Until 2014, Billboard, July 9, 2013, http://www.billboard.com/articles/news/1569348/robin-thicke-on-wifes-impact-on-blurred-lines-not-touring-america-until-2014

[3] Eriq Gardner, Robin Thicke Sues to Protect “Blurred Lines” from Marvin Gaye’s Family (Exclusive), THE HOLLYWOOD REPORTER, ESQ., August 15, 2013, http://www.hollywoodreporter.com/thr-esq/robin-thicke-sues-protect-blurred-607492.

[4] Alex Pham, “Blurred Lines” Legal Battle:  Marvin Gaye’s Family Rejected Robin Thicke’s Six-Figure Offer, THE HOLLYWOOD REPORTER, ESQ., August 23, 2013, http://www.hollywoodreporter.com/thr-esq/blurred-lines-legal-battle-marvin-613551.

[5] Eriq Gardner, Robin Thicke Sues to Protect “Blurred Lines” from Marvin Gaye’s Family (Exclusive), THE HOLLYWOOD REPORTER, ESQ., August 15, 2013, http://www.hollywoodreporter.com/thr-esq/robin-thicke-sues-protect-blurred-607492.

[6] Id.

[7] Id.

[8] Posting of George Clinton to Twitter, https://twitter.com/george_clinton (August 15, 2013); Eriq Gardner, Robin Thicke Sues to Protect “Blurred Lines” from Marvin Gaye’s Family (Exclusive), THE HOLLYWOOD REPORTER, ESQ., August 15, 2013, http://www.hollywoodreporter.com/thr-esq/robin-thicke-sues-protect-blurred-607492.

[9] Posting of George Clinton to Twitter, https://twitter.com/george_clinton/status/369826118456467456 (August 15, 2013).

[10] Interview by Harvey Levin with George Clinton, on TMZ, (August 19, 2013), http://www.tmz.com/2013/08/19/tmz-live-lindsay-oprah-winfrey-lohan-thomas-gibson-lebron-james-robin-thicke-george-clinton-robert-pattinson-katie-couric-kim-kardashian-jennifer-lopez-the-calling/

[11] Id.

[12] Id.

[13] Eriq Gardner, Marvin Gaye’s Oldest Son Claims Robin Thicke Copied Four Songs (Exclusive), THE HOLLYWOOD REPORTER, ESQ., November 26, 2013, http://www.hollywoodreporter.com/thr-esq/marvin-gayes-oldest-son-claims-660382

[14] Eriq Gardner, Blurred Lines” Lawsuit:  Marvin Gaye Family Now Claims Robin Thicke Stole Two Songs (Exclusive), THE HOLLYWOOD REPORTER, ESQ., October 30, 2013, http://www.hollywoodreporter.com/thr-esq/blurred-lines-lawsuit-marvin-gaye-651427

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Report from Judith Finell, Judith Finell Music Services, Inc., Preliminary Report:  Comparison of “Got to Give It Up” and “Blurred Lines” (October 17, 2013) http://www.hollywoodreporter.com/sites/default/files/custom/Documents/ESQ/musicologyblurred.pdf

[23] Eriq Gardner, Marvin Gaye’s Oldest Son Claims Robin Thicke Copied Four Songs (Exclusive), THE HOLLYWOOD REPORTER, ESQ., November 26, 2013, http://www.hollywoodreporter.com/thr-esq/marvin-gayes-oldest-son-claims-660382

[24] Eriq Gardner, Marvin Gaye’s Oldest Son Claims Robin Thicke Copied Four Songs (Exclusive), THE HOLLYWOOD REPORTER, ESQ., November 26, 2013, http://www.hollywoodreporter.com/thr-esq/marvin-gayes-oldest-son-claims-660382; Marc Hogan, Marvin Gaye’s son Widens Robin Thicke Theft Accusations Beyond “Blurred Lines,” SPIN, August 22, 2013, http://www.spin.com/articles/marvin-gaye-son-robin-thicke-blurred-lines-lawsuit-trouble-man/

[25] Eriq Gardner, Robin Thicke Sues to Protect “Blurred Lines” from Marvin Gaye’s Family (Exclusive), THE HOLLYWOOD REPORTER, ESQ., August 15, 2013, http://www.hollywoodreporter.com/thr-esq/robin-thicke-sues-protect-blurred-607492.

[26] Gary Graff, Robin Thicke on Wife’s Impact on ‘Blurred Lines,’ Not Touring America Until 2014, Billboard, July 9, 2013, http://www.billboard.com/articles/news/1569348/robin-thicke-on-wifes-impact-on-blurred-lines-not-touring-america-until-2014

[27] Stelios Phili, Robin Thicke on That Banned Video, Collaborating with 2 Chainz and Kendrick Lamar, a and His New Film, GQ, May 7, 2013, http://www.gq.com/blogs/the-feed/2013/05/robin-thicke-interview-blurred-lines-music-video-collaborating-with-2-chainz-and-kendrick-lamar-mercy.html.

[28] Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177 (1976).

[29] Id.

[30] Id. at 179.

[31] Id.

[32] Id. at 180.

[33] Id. at 181.

[34] Id.

[35] Marc Hogan, Marvin Gaye’s son Widens Robin Thicke Theft Accusations Beyond “Blurred Lines,” SPIN, August 22, 2013, http://www.spin.com/articles/marvin-gaye-son-robin-thicke-blurred-lines-lawsuit-trouble-man/

[36] Id.

[37] Id.

[38] Craig Joyce et al., Copyright Law 2 (7th ed., LexisNexis)(2006).

[39] Id. at 3.

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Gershwin Heirs Sue Warner Music

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Categories: Legal Disputes, Music Industry, Record Labels, Royalties, Tags: , , , , , , ,

In breaking news today, George Gershwin’s heirs are suing Warner Music for $15 million.  According to the article, the Gershwin estate conducted an audit of Warner in 2007 and found fault with Warner’s licensing and registration practices in regards to the Gershwin catalog.  The full article gives an example from the suit complaint as to how various commissions were taken off the top by foreign agents.

These types of issues come up often.  A good attorney will know to build certain precautions into the contract language to limit many of these commissions and make sure you have adequate audit rights.  Audits are expensive, but they can often be worth it by revealing accounting discrepancies and getting artists the money they are due.

If you are considering signing a contract involving payments and royalties, make sure you have a music or entertainment attorney review it carefully and keep tabs on the companies!  Contact me if you need assistance with a matter like this.

 

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