I Hate These Blurred Lines — Musicians and Re:Create Agree that Copyright Should Promote Creativity

“If you can’t hear what I’m trying to say. If you can’t read from the same page. Maybe I’m going deaf. Maybe I’m going blind. Maybe I’m out of my mind” — Robin Thicke feat. T.I. and Pharrell, Blurred Lines, 2013
“You got to get it. Got to give it up.” — Marvin Gaye, Got To Give it Up, 1977

This week more than 200 recording artists filed an amicus brief in support of Robin Thicke and Pharrell Williams’ efforts to overturn a decision declaring the popular song “Blurred Lines” as copyright infringement of Marvin Gaye. As Computer & Communications Industry Association’s (CCIA) Ali Sternburg put it:

“This brief was noteworthy, in that it’s an important — and somewhat rare — example of rightsholder constituencies pointing out the costs of overbroad rights. While scholars say this frequently, it is not as commonly heard from artists.”

The amicus brief — signed by notable artists representing a wide variety of music genres such as Weezer, Hans Zimmer, Fall Out Boy, Earth Wind & Fire, Jason Mraz, Katharine McPhee, and Jennifer Hudson — advocates for a clearer legal distinction between infringement and inspiration in songwriting:

“The verdict in this case threatens to punish songwriters for creating new music that is inspired by prior works. All music shares inspiration from prior musical works, especially within a particular musical genre…Virtually no music can be said to be 100% new and original.”

The musicians describe how all songwriters are inspired by other musicians who came before them, resulting in a never-ending cycle of creativity:

“One can only imagine what our music would have sounded like if David Bowie would have been afraid to draw from Shirley Bassey, or if the Beatles would have been afraid to draw from Chuck Berry, or if Elton John would have been afraid to draw from the Beatles, or if Elvis Presley would have been afraid to draw from his many influences…Quite simply, 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…
Such a result, if allowed to stand, is very dangerous to the music community, is certain to stifle future creativity, and ultimately does a disservice to past songwriters as well.”

In a separate amicus brief, Coalition member Public Knowledge echoes the musicians’ concerns that borrowing is critical to the creation and development of new music:

“And it is essential that musicians be allowed to engage in this sort of borrowing. We enjoy music because it evokes memories and feelings as we listen to it. Composers cannot evoke those memories and feelings without making reference to things we have heard in the past.”

The recording artists’ filing also quotes Re:Create Coalition member Electronic Frontier Foundation’s Parker Higgins on the dangers to creativity when copyright is overextended:

“When we say a song ‘sounds like’ a certain era, it’s because artists in that era were doing a lot of the same things — or, yes, copying each other. If copyright were to extend out past things like the melody to really cover the other parts that make up the ‘feel’ of a song, there’s no way an era, or a city, or a movement could have a certain sound. Without that, we lose the next disco, the next Motown, the next batch of protest songs.”

Ultimately the filing stands as an interesting commentary on the need for more balanced copyright and a reminder of Kirby Ferguson’s great webcast on creativity that “everything is a remix.” It also stands as a needed reminder that the balanced copyright movement is not anti-musician nor anti-copyright despite our opponents’ claims. The “Blurred Lines” case is a great example of how copyrights, which are intended to promote creativity, can also be misused and stifle creativity when abused by overzealous creators or when they pass on to business interests or heirs who are less focused on creativity and more focused on the almighty dollar. As the musicians wrote in their amicus brief:

“Whether or not Appellants are able to afford to defend this case and pay a judgment, most of the musicians in the world are not in a position to do so. Clearly then, when a budding songwriter is contemplating the composition of a song, it is axiomatic that he or she is going to think twice before he or she writes a song that ‘feels’ like a Marvin Gaye song or any other artist’s song, always with one foot in the recording studio and one foot in the courtroom. This is an untenable situation that most certainly will not foster uninhibited creativity.”

This year has seen an increasing number of copyright lawsuits against popular musical acts like Led Zeppelin, Ed Sheeran, Justin Timberlake and Demi Lovato. Though the merits of each case are different, the Re:Create Coalition stands with the recording artists who are concerned that overly broad copyright regulations and judicial precedents will stifle creativity and endanger the entire music community, especially up-and-coming artists. Copyright is not intended to be a get-rich-quick scheme nor a method for prevention of fairly original creative works like “Blurred Lines” (a song that is a big guilty pleasure of this author). Instead, it is about incentivizing the creation of and access to the arts and literature, knowledge development and ultimately the enrichment of our society and culture. As R Street’s Sasha Moss writes:

“The artists are advocating for standards in copyright-infringement cases, in this case, between artists. Ultimately, they are the group most affected by this ruling. And if judgements may be made on the ‘feel’ or ‘groove’ of two songs, the entire music industry will be trouble.”