On Tuesday, March 10, 2015, a California federal jury returned a verdict finding that Robin Thicke and Pharell Williams had copied Marvin Gaye’s 1977 song “Got to Give It Up” when writing Thicke’s 2013 hit, “Blurred Lines.” The media immediately reported this decision as a major development in music law, finding the award of $7.36 million in damages to be monumental and practically unprecedented. The New York Times, giving the story the coveted Column Six position in the “Business Day” section, cited an intellectual property lawyer who called the jury’s verdict a “bad result” that “will cause people who want to evoke the past to perhaps refrain from doing so.” Perhaps even more important than the result is the fact that the case is receiving so much attention. As one of the lead stories on the network morning news programs, the coverage of this “story” and its impact on society’s views might be the bigger issue to emerge.
Popular Conceptions of Intellectual Property Law
In 2014, Gregory N. Mandel, professor of law and associate dean for research at Temple University’s Beasley School of Law, published an article, “The Public Perception of Intellectual Property” that commented on an experimental study of 1,700 U.S. adults designed to investigate the “popular conceptions of intellectual property rights.” Mandel noted that “the success of intellectual property law depends upon its ability to affect human perception and behavior” and that the study showed “views of what intellectual property law ought to be differed substantially from what intellectual property law actually provides.” He found that “popular conceptions of the basis for intellectual property rights were contrary to commonly accepted bases relied upon in legal and policy decision-making.” The result in the “Blurred Lines” case and the disparate remarks made by commentators further demonstrate that society is far from reaching a uniform acceptance of intellectual property law.
The History of Intellectual Property Rights
Intellectual property (IP) rights in the United States can be traced back to the Constitution, although the origin of such concepts can be found hundreds of years before. Article I, Section 8, Clause 8 of the U.S. Constitution empowers Congress:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
The first Patent Act was passed in 1790 and the first Copyright Act shortly thereafter. These acts were subsequently repealed and replaced with a body of law that continues to be modified today. While the law has adapted to changing technologies, the attitudes toward the policy behind such rights remains constant: IP law exists to incentivize authors and inventors to create new works and inventions and make them available to the public. This policy theory holds that if authors and inventors were not incentivized, they would not create and progress would stall. While there are other policy rationales for the adoption of IP protection (primarily outside the United States where “moral rights” and “natural rights” are more common), in the United States this incentive-based theory controls.
Technology Frames the Debate
With the expansion of the Internet and public interest in “freedom of speech,” many have questioned whether the monopolistic rights given to creators are what is best for society. Is the public’s desire for content more important than the incentive to one author? Will an artist continue to create if the rights are curtailed? What is clear, however, is that the public perception of what is acceptable is being framed by technology and the current culture. Many people still believe that if something is on the Internet, it is “in the public domain” and can be used freely. Oftentimes, we receive looks of astonishment when we tell people that intellectual property rights prevent them from “doing what they want” with things they find online.
A few years ago, Congress, buttressed by support from large media companies and lobbyists, the Motion Picture Association of America and the Recording Industry Association of America, tried to pass legislation to stop the proliferation of online availability of movies, music and other media. The Stop Online Piracy Act of 2011 (SOPA) and the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2001 (PROTECT IP or PIPA) were both killed in part due to a groundswell of opposition based on censorship, the impact on free speech and the potential to curtail innovation.
The public movement toward greater availability of the intellectual property of others seems to be at odds with the jury’s finding in the “Blurred Lines” case. While many people still seem to find online piracy acceptable when done within their own home, shoplifting the same video or audio from a brick-and-mortar store would be taboo. This is the perception and resulting behavior that is shaping today’s society as it moves toward a more integrated presence online.
Beyond the Verdict
Following “Blurred Lines,” the music industry may need to reevaluate what “influence” in music means. What is clear is that the line between copying and evoking a “feel” regarding music has just been blurred. Insofar as the jury’s verdict may not end the legal analysis in this case, courts will need to evaluate where “ideas” depart from “expression” and what “transformative” truly means in the context of fair use.
But this award goes beyond impacting the music industry. The result may cause others to question whether they risk exposure in posting something online, and the public’s creative explosion following on the heels of online expansion may come to a screeching halt. Will people stop posting photographs taken by others for fear of retribution? Will young computer geniuses refrain from developing the next big app because they fear an infringement suit? Regardless of how the “Blurred Lines” matter is eventually resolved, commercial venturers may want to take another look (or obtain a legal opinion) before using online photographs, videos and recordings in the course of their business.
Wilson Elser continues to monitor the intersection of intellectual property, media rights, and public access and usage and will keep a close eye on the “Blurred Lines” case for future updates.