Post Copyright Reform Music Licensing

Weird Lines: What happens when you legally used a now-illegally-made work?

March 13, 2015 ,

The hot takes on the Blurred Lines copyright infringement suit are out, and you may have already seen them. The verdict is “bad news for music;” it’s “legally and musically…a disaster;” its particular use of experts in trying to draw the legally necessary distinction between the musical composition and the sound recording was a complete mess.  I read these and nodded along with their analysis, for the most part. But a further, nerdy question still burned:

Won’t someone please think of Weird Al?

Weird Al Yankovic, though he often makes parody songs, pretty much (pretty much) always gets permission from the musicians whose styles he’s mimicking. In this particular case, that was also a good idea, since it doesn’t mock “Blurred Lines” itself, and thus wouldn’t have the strong fair use defense of parody.  And in this case, his satire of “Blurred Lines,” he did get permission from Pharrell (who, with Robin Thicke, was the author of the song), which keeps him from being sued by the rightsholders of 2013’s much-embattled summer jam.

 

But now that a jury has said that “Blurred Lines” is itself infringing, by taking enough elements from Marvin Gaye’s “Got to Give It Up,” how could “Word Crimes” not suffer the same fate? It replicates the music of “Blurred Lines,” so if that song was infringing, this one should be, too. And Weird Al didn’t get permission from the Gaye estate.

So short answer, yes—I think that, regardless of other songwriters looking over their shoulders at the possibility of the heirs of their influences now suing them, there ought to be a team of lawyers somewhere fretting about a potential “Gaye v. Yankovic.”

Should You Be Worried About Your Copies of “Blurred Lines”?

So if “Blurred Lines” is itself infringing, and you have copies of it lying around, playing on your sound system, whatever, should you be as worried about a lawsuit as Al Yankovic? Probably not, actually.

First of all, merely listening to your copy of the song shouldn’t ordinarily implicate anyone’s copyrights—you’re not reproducing, distributing, or publicly performing the work. (Let’s assume for the sake of sanity that the Gaye estate isn’t going to start worrying about RAM copies just yet.) Secondly, if you do do something that’s covered by copyright—say, giving a friend your CD of “Blurred Lines,” well, it’d seem that your potential infringement has already been paid for by Robin Thicke, Pharrell, and the other parties in the lawsuit.

To see how that works, we can break down the $7.3 million award. $4 million was awarded in damages—the amount that the copyright holders lost due to the infringement. An additional $3.3 million was awarded out of a share of the profits from “Blurred Lines.”

So, because “Blurred Lines” was created, the court has said that the Gaye estate was harmed to the tune of $4 million. And in addition to that, $3.3 million of Pharrell’s and Thicke’s profits from “Blurred Lines” is attributable to what they took from “Got to Give It Up.”

But the damage done to the Gaye estate by the creation of “Blurred Lines” doesn’t just encompass the making of the studio recording; it also encompasses the other uses of that song, including its radio plays, digital distribution, and copying onto CDs—down to the CD you just handed over to your friend. If you have in fact distributed a part of “Got to Give It Up”[1], you’d be “jointly and severally liable” with Pharrell and Thicke.

“Joint and several liability” is a particular way of divvying up blame for an infringement. In this case, it means that $4 million in damages is to be spread across everyone involved in the use of “Blurred Lines,” but any one person involved can be held accountable for the full sum. That one person then would have the responsibility to “join” other alleged infringers in the suit, so that the damages would be shared proportionately among them. Did you get joined in that lawsuit? No? Then don’t stress. Even if you had been, assuming you were an ordinary consumer, your share of the liability would likely be minuscule.

 Won’t someone please think of Weird Al (Part Two)?

But if that’s true, why would I be worried about Weird Al? After all, if his song’s infringement only stemmed from the infringing creation of “Blurred Lines,” his liability would already be shared with the other infringers—and he wasn’t made part of the lawsuit in time, either.

That’s true of the $4 million in damages, but not of an award of profits. While awards of damages for copyright infringement are joint and several, awards of the infringers’ profits are only several. This means basically that each infringer is responsible for their own profits, and not anyone else. You can see how this works: though the Gaye estate was damaged a certain amount by everyone (here, let’s say, Pharrell, Thicke, and Yankovic) acting in concert, each of those three different people made a different amount of profit, separate attributable in part to their use of the song.

So while it’s too late for the Gaye estate to recover damages from Weird Al (or, to be more accurate, they already have, in a way), they could still try to go after him for his profits on “Word Crimes,” to the extent that those profits can be attributed to his taking from “Got to Give It Up.” And giving Al Yankovic a reason to worry is just one more reason to be upset with this verdict.

 


[1] Because that is the song you’d be infringing, since its copyrightable bits are embedded within “Blurred Lines.” Yes, ordinarily, you should be safe from liability here because of the first sale doctrine, which says you can distribute lawfully made copies of works that you own. The further weirdness that calls that into question is the fact that, following this verdict, it looks like that CD you bought might not have been “lawfully made.”

 

Image credit: Flickr user fsteele770