Yesterday, a jury found that the 2013 song "Blurred Lines" was an infringement of Marvin Gaye's "Got to Give It Up" composition from 1977. Following the 7-million-dollar verdict, professional musicians are waking up to a fact that ordinary Internet users have long known: our overbearing copyright laws are a threat to creativity.
Numerous musicians are expressing disbelief at the verdict, seeing little similarity between the two songs aside from a general "feel" or "vibe." According to the LA Times:
Los Angeles composer and producer Gregory Butler said Tuesday afternoon that his friends and colleagues in the industry were stunned by the verdict.
"You've made it illegal to reference previous material," said Butler, also a managing director at music startup WholeWorldBand. "I'm never going to come up with something so radically different that it doesn't contain references to something else."
Joe Escalante, an early member of the Vandals punk rock band and an entertainment law attorney, said he was concerned that the jury's decision had been driven by emotion rather than what's protected under copyright law.
"This may put a smile on the Gaye family's face, but it's a dark day for creativity, and in the end, this will be a net loss for music fans," he said.
Artists evoke elements of common culture all the time, to make their point or simply to entertain by putting their own twist on what has come before. This is what makes culture a conversation and not a series of disjointed soliloquies. Copyright law, though, is dangerously disconnected with the way culture gets made, and as a result it pushes entire genres and communities to the margins, such as those that involve sampling, remix, and other adaptations. A staggering amount of such work is generated noncommercially and available online, but the broad sweep of copyright exclusivity, the risk of disproportionate statutory damages, and the uneven application of the fair use doctrine mean that such authors are typically excluded from commercial opportunities. Far from being incentivized by copyright, such authors typically create in spite of the threats posed by copyright law.
The creators of “Blurred Lines” are likely to challenge yesterday's verdict, but if it is upheld then many more artists could be marginalized or discouraged. Musicians will have to think twice before creating any new songs that evoke the feel of the music that inspired them in their youth. And with the length of copyright we have these days, artists who want to feel confident that their musical influences are in the public domain are going to have to go all the way back to ragtime.