The ["Blurred Lines"] verdict has, perhaps unintentionally, shifted the interpretation of music copyright beyond composition, towards sound itself. This poses an interesting problem for electronic music producers whose personas are, through hours spent toiling over oscillators and EQs, often linked to intentionally crafted sonic characteristics. How much can these artists legally grasp for to protect the sound that they have created from a deluge of imitators?
In this piece Thump speaks with UK Music Lawyer Ben Challis who, like me, feels this verdict was wrong-headed and has troubling implications for creators (and not just in music, or dance music, when you really think about it).
Ben Challis: My personal opinion was that the jury got it wrong. It's a very grey area and everyone made those puns about "blurred lines," but it is a very grey area and judges have always struggled to define what is inspiration and what's appropriation. Yes, the two recordings sound pretty similar, but the whole case is about the song, and in my own personal opinion the songs are not similar. If the case had been brought by the company that owned the sound recording I might have supported the decision.
Thump: What's the difference between an electronic musician hearing another contemporary track and saying "I want to make that sound," and Pharrell Williams saying "I really like that aural quality, that sound that Marvin Gaye had." In both cases, you are trying to replicate a specific quality, a specific sound, correct?
Ben Challis: Correct. I don't think there is a difference in what you're saying or the question you're asking. It's the same question and of course again you can be influenced by someone, you can be inspired by someone, that's fine in legal terms. What you can't do is appropriate someone else's work or copy their work, or at least copy a substantial amount of their work.
Update: I also ran across this fine article for WIPO Magazine by Ben Challis that goes into greater detail about the "Blurred Lines" verdict and gives some historical, legal background.
As Time Magazine put it, the decision would have a “chilling effect” on future song writing. Some went further, arguing that sampling should be recognized as an integral part of modern music creation, and that the case showed that copyright law was out of touch with current methods of music production. There are only a limited number of notes on the standard musical scale and surely it was now generally accepted that certain expressions cannot be subject to copyright, they said. Others argued that one of the purposes of copyright is to encourage creativity, not stifle it – hence the position that copyright only protects the expression of ideas, not ideas themselves. And yet others contended that transformative use can, at least in the United States, be protected as fair use. The general feeling seemed to be: “some protection is good – too much protection is not good”. As ever, it’s all down to where you draw the line.
Unsurprisingly, an appeal in the Blurred Lines case has already been formally announced.