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If the lines are ‘blurred’ the right thing is to ask permission

By | Published on Wednesday 1 April 2015

Robin Thicke

This is the full version of a letter written by entertainment lawyer Michael Sukin, owner of the Sukin Law Group, in reaction to the recent ruling in the very widely reported Blurred Lines case, and particularly to comments made by defendant Pharrell Williams in a post-trial interview with the Financial Times. An edited version of the letter was published by the FT today.

Sir, Robin Thicke’s and Pharrell Williams ‘Blurred Lines’ is a fantastic record, loved by many, as its #1 status showed. The question for the jury in the federal lawsuit was whether the song it contains was “substantially similar” to Marvin Gaye’s ‘Got To Give It Up’.

The jury heard often heated testimony from experts on both sides. In the end, it was up to the impartial non‑expert “every man” jury, and they found that ‘Blurred Lines’ crossed the line (pardon the pun) and infringed Mr Gaye’s 70s anthem. The jury heard all of the experts. They even heard Mr Thicke play the song.

Mr Williams was quoted in the Financial Times as saying: “There are songs that utilise other material, but until now there has not been copyright infringement, which is why this is so scary.”

This could not be further from the truth, even in current popular music. George Harrison’s infringement of ‘He’s So Fine’, written by Ronald Mack and interpreted by the Chiffons, was decided in favour of Mr Mack. Mr Harrison apologised.

The 1990s saw the first significant sampling decision by a federal court, Biz Markie’s looping of my client, Gilbert O’Sullivan’s ‘Alone Again Naturally’, without permission, resulted in a judgment in Mr O’Sullivan’s favor against Biz Markie, his record company and Warner Brothers Records, the distributor.

The judgment required that the recording be removed from the market and applied penalties for each week that the record was available for sale. The federal judge in that case did not feel the need to cite any authority except Exodus, as the first words in the opinion were a quotation from the Bible: “Thou shalt not steal”.

What in the world makes people think that they can take material from other people’s songs without permission? (Biz Markie asked for permission, but never got it, by the way). If they are not sure but it sounds close, then ask, work something out, share credit, acknowledge an homage and make a great record.

If the owners of the underlying work do not want it used, then use something else. That is their prerogative as it is yours for what you are entitled to protect. Inspiration is necessary and exciting, using somebody else’s protected work without permission is neither.

Prior to the Biz Markie case, record company oversight of sampling clearances had not been energetic. That case resulted in most major record companies requiring that all samples be cleared before studio time would be authorised. No “freezing” of sampling use seems to have resulted. In fact, the use of samples has boomed over the years.

What has gone before inspires what comes next. Part of the purpose of copyright is to encourage people who have the genius and the ability to create something new to do so. Society (including me personally) want them to benefit from their work, to earn recompense from it and to decide who can copy or borrow from it.

There is a discussion amongst those interviewed for the FT’s very interesting article about the potential horrors of protecting “feeling and emotion”. Such a rule of law would indeed be horrible. Fortunately, we do not live in that society.

The debate about whether copyright is ruinous for creative work or inspires it is as old as copyright protection itself. In fact, feelings, emotions, ideas of anyone are not limited by copyright. There is a Commons Of Ideas, as Professor Paul Goldstein of Stanford University Law School has noted. Inspiration and feeling are part of that Commons, and it is free to all. Taking from other’s original work is not.

Songs are living things. They morph, they develop, they change, but at the core is protection. Professor Ben Yagoda of The University of Delaware points out in his wonderful book ‘The B Side, The Death of Tin Pan Alley And The Rebirth of the Great American Song’: “In many cases a song’s versatility would not become evident until years or even decades later”.

He notes that Ira Gershwin, an inhabitant at the top in the tower of song, recalled in his memoir ‘Lyrics On Several Occasions’ that ‘Someone To Watch Over Me’, as the brothers Gershwin wrote it, was “a fast and jazzy tune”. Over the decades, the tempo (or the feeling or emotion) slowed and slowed. Professor Yagoda points out that allmusic.com lists 18,068 recordings of that song; pick your feeling, pick your emotion, you are free to interpret; you are not free to claim the work as your own.

Was the jury in the ‘Blurred Lines’ case making a judgment of substantial similarity between recordings, melodies, songs, feelings or emotions? Presumably, these issues all relate to the song. It is difficult to infringe a sound recording except by actually copying it. A song is another matter.

Is it fair to say in this age of digital wizardry that what one brings to a song can or should itself be protected? That is probably a question for enhanced copyright as time goes, but not for eliminating the protection that copyright affords to all creators throughout the world and which itself needs support and enhancement.

Does similarity in ‘recordings’ blur the lines as to similarity in songs? Possibly so, but the answer is not reducing the protection afforded the songs but enhancing the protection available to what is created in the studio with shared credit and income to the underlying work.

Remember, the award was made, not because the jury were “experts”, but because they were an average group of normal people who heard a substantial similarity to the underlying work (all of the experts seemed to disagree depending on which side of the litigation they were on).

There is a moral to the story: If the lines are ‘blurred’, ask permission. It is the right, civil and moral thing to do.

Michael Sukin
Attorney at Law
New York/Tennessee



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