One of the highest profile intellectual property appeals right now is Williams v. Gaye. Robin Thicke, Pharrell Williams, and Clifford Harris Jr., aka T.I., are appealing a $5.3 million judgment against them for copyright infringement. Last week two outside groups filed important amicus briefs in the case, which highlight how this case could radically change copyright law in the U.S. (for the worse, in my opinion). These briefs also highlight the use of amicus briefs in appeals, and how attorneys can use friendly amicus briefs to bolster their arguments. This post discusses one of those briefs, submitted by musicians in in favor of Williams et al.
This was unusual because the two songs do not share melodies, lyrics, or chord progressions, but instead have a similar “feel” which is not reflected in sheet music and is not easily quantified.* To many people, the prospect of Gaye’s estate winning this case was terrifying: it could create a huge chilling effect preventing musicians from writing anything that sounds like the people who inspire them.
Short version: both sides sued each other. Gaye’s estate won a jury trial and now Pharrell et al are appealing. The case is now being briefed before the 9th Circuit Court of Appeals.
The “Blurred Lines” attorneys argue the appeal on somewhat narrow grounds – when Gaye wrote his song, it was governed by the Copyright Act of 1909, which did not take into account sound recordings, only sheet music. The law changed after Gaye wrote the song to include sound recordings, but the older law governed here.** The court allowed Gaye’s witnesses to include sound samples to demonstrate elements of the song, and thus circumvented the law. These experts also claimed that many of the distinctive sounds in Gaye’s song that were not in the sheet music were somehow implied by it. The “Blurred Lines” lawyers argue that this prejudiced the jury into thinking that song elements that weren’t under copyright were still relevant to whether Pharrell infringed.
This argument is narrow and, on its own, did not directly address the consequences of the judgment based on "feel" standing. That is why the amicus briefs were so important: They explained in detail the terrifying prospects of this ruling and how it would affect musicians’ livelihoods.
The most notable brief, submitted by “212 Songwriters, composers, musicians, and producers” was signed by people such as Hans Zimmer, every member of Tool, Danger Mouse, the Stargate production team, and half of Hall and Oates. The musicians discuss the nature of music and inspiration, and how it could be damaged were this judgment to be affirmed .
Copyrights are not granted to ideas, but to expressions of those ideas. As the musicians point out, Pharrell et al were found "liable for the infringement of an idea, or a series of ideas, and not for the tangible expression of those ideas . . . Such a result, if allowed to stand . . . is certain to stifle future creativity, and ultimately does a disservice to past songwriters as well."
The musicians went on to explain that, while Pharrell and Robin Thick and T.I. could afford to fight a lawsuit like this, "when a budding songwriter is contemplating the composition of a song, it is axiomatic that he or she is going to think twice" before writing a song that feels like a song they like. This is a terrible situation for aspiring songwriters to be in.
For writers working in new genres, this could be especially problematic. If this judgment were to stand, no one would want to write the second rap song, or disco song, or even blues song, once someone else had established a template. If copyright were extended to cover "feel," there would be no new movements or genres. Musical innovation could be crippled.
This amicus argument may seem much more salient and important than the narrower arguments. So, why did the "Blurred Lines" attorneys not raise it if it's so powerful?
This is where an amicus brief shines. It is true that the attorneys for Pharrell et al are free to raise broad policy arguments, but their primary goal is to get the judgment against their client reversed, not to set national policy. Circuit courts generally want to make narrow judgments that apply the law as written without overturning their own precedent. So, an argument that simply points out an error of the trial court, and does not require the circuit court to make broad sweeping changes to the law, is the smart approach.
On the other hand, the amicus brief tells the court the reason this judgment cannot stand. It can make the court want to rule in favor of the appellants, even if the court doesn't adopt the policy of the Amici and instead relies on a narrow ruling. This does not mean the court would adopt the opposite policy - instead the court gets to punt the issue while suggesting to all parties how it may rule.
A narrow ruling is still good for the 212 musicians who signed the brief. It means that the court has not ruled against them(unless the court explictly does so), and it plants the seed in the mind of the court for next time.
Robin Thicke is an unlikely champion of the rights of artists. He did not behave admirably during the course of this lawsuit, and many find his one big hit quite offensive.*** That being said, it would be a mistake to root against him in a case where so much is at stake. When oral argument occurs for this case, we will see whether the Amicus policy arguments carry weight with the court.
**Technically the Copyright Act of 1976, which allows for sound recordings, predates “Got to Give It Up.” However, that law became effective on January 1, 1978, and so does not apply.
*** Robin Thicke's post-hoc denial of involvement in the creation of his biggest hit may be why Pharrell Williams was the lead plaintiff.