Where Influence Becomes Infringement

Almost everything written about the Blurred Lines case gets one fact wrong: it was not a sampling case. No recording was copied. Nothing was lifted.

The Gaye estate held rights in the composition of Got to Give It Up, from 1977, and not in the recording of it. For a work of that period the registered property was the written music, which has a consequence the lay reader finds almost unbelievable: the jury was largely barred from hearing Marvin Gaye's record. The comparison had to be made against the sheet music, played and sung as written, because that was the property in dispute.

In 2015 the jury found for the estate and awarded 7.4 million dollars. The trial judge reduced that to 5.3 million plus a share of ongoing royalties, and the Ninth Circuit largely affirmed.

Then the dissent, which is the reason the case is still argued about ten years later. Judge Nguyen wrote that the verdict allowed the Gayes to copyright a musical style.

That is a serious charge and it points at a real principle. Copyright does not protect style, genre, feel or general musical ideas. It protects particular expression. You cannot own a groove, a type of bassline, a way of using falsetto, a production approach, or the sound of a decade, and the reason is obvious once stated: every song is made inside a tradition, and a rule that protected traditions would make writing inside one an infringement.

The dissent's argument is that what the two songs demonstrably shared was mostly that kind of material. Feel, instrumentation, a general idiom, the cowbell and the party atmosphere. And that the elements the estate's musicologist pointed to were in some cases not in the sheet music, which was supposed to be the only evidence.

I am not in a position to tell you whether the jury got the facts right; musicologists who have examined the two scores in detail disagree with each other in print. What is worth taking away is the structural worry, which does not depend on the facts of this case.

Infringement of a composition is tested by substantial similarity, and similarity is the normal condition of music. Songs in the same idiom share chord sequences, rhythmic patterns, phrase shapes and instrumentation, because that is what an idiom is. The hard part of any such case is separating what one writer did from what the style supplied, and there is no clean test for it, only expert witnesses arguing about which features are generic.

So the fear among songwriters after this verdict was not that they would be sued for copying. It was that they could be sued for sounding like something, and that the difference between those two things is decided case by case by juries listening to musicologists.

Put the three lessons together and the architecture is simple enough to carry around. Two properties. Taking the performance is the sampling question, where the law is currently inconsistent by geography. Taking the song is the composition question, where the test is similarity and the difficulty is the idiom. Every music copyright headline you will ever read is one of those two, and knowing which saves an enormous amount of confused argument.