By Hannah Fields
Copyright infringement has been a hot topic in pop music lately, and a verdict reached on March 10, 2015 by a federal jury in Los Angeles has caused quite a stir. That jury decided “Blurred Lines” singer Robin Thicke and producer Pharrell Williams had to pay the estate of Marvin Gaye a walloping $7.4 million for copyright infringement of Gaye’s 1977 song, “Got to Give It Up.”
Similarly, in October 2014, singer/songwriter Tom Petty and co-writer Jeff Lynne claimed that their 1986 hit “I Won’t Back Down” was copied by the popular Sam Smith song, “Stay With Me.” Smith, along with writers James Napier and William Phillips settled the infringement claim with Petty and Lynne. According to a representative for Smith, the parties came to an immediate and amicable agreement. As a result of that settlement, Petty and Lynne are now listed as co-writers of the song and enjoy a 25% share of songwriting royalties.
Michael Harrington, a professional musicologist who specializes in federal copyright matters, explains that in the Smith case, the two songs have a sequence of almost identical phrases in Smith’s chorus and Petty’s verses. In Harrington’s opinion, the similarity was so great that the infringement claim may have been successful if it had gone to court. Harrington’s opinion is, of course, simply speculation. Harrington, speaking to USA today in January, said the case for infringement is made more likely by “the fact that it keeps going and going: there are several phrases, and rhythms that are the same or extremely close to being the same. At some point, the similarity goes on too long.”
To bring a successful copyright infringement claim in court, the plaintiff (the party bringing the claim) must show two main things. First, the plaintiff must prove that they own a valid copyright. Second, the plaintiff must prove the other party copied original elements from the copyrighted work. This is done by showing a “substantial similarity” between the works, and that the alleged infringer had access to the work.
In the Thicke case, the jury was instructed to make their decision based on written melodies, chords and lyrics, because these were the only elements of Gaye’s song protected by copyright. However, many critics say that Thicke and Williams are ultimately only guilty of stealing the “vibe” of the Gaye song, which is not protected under copyright. The Thicke jury verdict may encourage artists to self-censor while writing music if they think their “vibe” too closely matches that of a particular influence. The case is likely to be appealed so this saga is not yet at a close. For the time being, influence now has another avenue of anxiety for artists, a possible claim of copyright infringement.