Shockwaves were sent through the entertainment world as a jury ordered Pharrell Williams and Robin Thicke to pay $5 million to Marvin Gaye’s estate for a copyright infringement. Williams and Thicke’s 2015 summer hit, “Blurred Lines”, was a massive radio success, much like Marvin Gaye’s 1977 classic, “Got to Give It Up”.
The judge ruled that Blurred Lines did appropriate key elements of the original song, and as such constituted an infringement. In addition to the $5 million lawsuit, the court ordered the pair to pay 50% of future royalties from the song to the Gaye family. While the 2015 hit generated a total of $16.6 million in revenue, a sizeable chunk of that has been used for legal proceedings. The lingering question seems to be: what stopped them from going through the appropriate channels to approve their use of the sample?
Digital music sampling has become a cornerstone of modern music production. It reflects a move towards a collage-based style of artistic expression. Despite this shift, the legal framework relevant to sampling is currently suffering from power imbalances that lead to inefficiencies and unfairness. Specifically, exorbitantly high transaction costs for copyright owners and users and the potential threat of copyright owners losing control of their intellectual property has created a hostile climate.
Under current processes, to legally sample a song requires permission from the owner of the composition (the song itself) and the recording, as these represent two individually copyright protected works. Typically, these situations will not give rise to court proceedings, as the threat of legal costs leave many artists settling outside of court. In fact, Pamela Chelin, a court reporter who covered the trial, noted that a unique factor in this case was that it actually went to trial. What this means is that for Williams and Thicke the pair to legally clear the 1977 classic, they would need to obtain permission, and likely be subjected to a negotiation process that would be heavily tipped against them.
Section 3(1) of the Copyright Act (the Act) lists the rights available to the copyright owner in the event that a potential breach of their rights occurs when a sample is used. The Act defines a copyright as “the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof”. The wording “sole right” affords the owner an exclusive right over the material.
A copyright infringement occurs when any person does anything the Act grants the owner the right to do without consent from said owner. In assessing whether an infringement has occurred, courts have relied on evaluating the following: what constitutes copying, what is a substantial part, and how can copying be proven?
The result of the pair ceasing to release the 2015 hit would surely have been an unwanted consequence for the general public. For some academics, the solution to this imbalance lies within the creation of a streamlined compulsory licensing system, similar to the current regime for music covers. Copyright owners and artists benefit from this system, as time and money would no longer be wasted on legal costs stemming from statutorily imposed negotiations. The license would remove this negotiation requirement and allow for royalty payment structures to be calculated at the outset based on market trends and other pre-established variables.
Despite the prevalence of this form of copyright infringement, and the widespread use of sampling over the past few decades, conversations around reform have yet to occur in a meaningful fashion. Perhaps this case will signal a need for legislative change to provide more guidance for sampling. In the words of The University of Virginia professor, Siva Vaidhvanathan, “Society doesn’t just create things, it evolves from taking old things and changing them”.
Written by Jason Clarke, a third year JD Candidate at Osgoode Hall Law School.