CMU Trends

Trends: Top five music lawsuits to watch in 2018

By | Published on Friday 5 January 2018

As 2018 gets underway and we start to look at the music year ahead, let’s not forget the stage that is the courtroom. What litigation and legal wrangling could have an impact on the music business this year?

CMU Trends picks five big cases, reviews the story so far and considers the possible ramifications of each legal battle.

1. SONGKICK V LIVE NATION
Songkick lives on as a service but not as a company. Yet it’s the latter that is still locked in a long running legal battle with the biggest live music business in the world.

The Songkick company that basically ceased to exist last year had two sides to it, the result of a merger in 2015 between the Songkick gig recommendations app and the Crowdsurge direct-to-fan ticketing platform.

Actually, even prior to that merger, Songkick had moved into ticketing. Songkick was originally a data business that recommended gigs to its users and then linked them through to third-party ticketing platforms. If a user bought a ticket, Songkick took a small commission from the actual ticket seller.

That business model continued, but Songkick also slowly became a ticket seller in its own right. The company initially said that that was because the Songkick gig recommendations service was mobile-centric and many ticket companies, at that time, did not have mobile-friendly websites, resulting in lost sales for everyone when the fan clicked through to the ticketing platform and couldn’t work out how to buy a ticket.

Though, of course, if it could become the actual ticket seller, the booking fee Songkick could earn would be significantly higher than any affiliate fee commission paid by a third party ticketing company. And after its merger with Crowdsurge, you sensed Songkick now saw direct ticket selling as a core part of its business, rather than as a convenience add-on to its core data and gig recommendations operation.

There have been plenty of ticketing start-ups in recent years. Most come to market with platforms that are both more consumer friendly and more promoter friendly than those operated by traditional ticket agents.

Many of those start-up ticketing platforms also share more data with the promoter, venue and artist. Some try to get rid of the practice of having booking fees separate from the face value of the ticket, so to end a practice that all the research shows consumers hate. And some brag about having tools and tactics that make it harder for tickets to fall into the hands of touts.

But breaking into the primary ticketing market is tricky, because you need to get access to tickets, and there are a small number of existing players who dominate.

As a promoter, you like the idea of ticketing platforms that are more consumer friendly and which give you better data about the people buying tickets to your shows. But you also want a ticketing company with a big existing database of consumers that can be used to help you sell your tickets. And, for bigger shows, you want a ticketing company that can advance you money ahead of the concert or festival itself, cash flow often being your single biggest headache.

And when it comes to databases for marketing and advancing for cash flow, the big legacy ticketing companies often have the edge. And many of those legacy ticketing companies have a business model where they’ll offer promoters more marketing and more cash flow – and other kick-backs too – the more tickets the promoter allocates to the ticketing platform. Some routinely push for exclusivity – or near exclusivity – so that the vast majority of tickets for any one show are sold via a single primary ticket agent.

And then there is Live Nation: the biggest concert promoter in the world, the second biggest venue operator, the largest artist management group, and the owner of Ticketmaster and its the various primary and secondary ticketing businesses.

Ticketing start-ups, therefore, need a strong USP to compete. Obviously, Songkick’s popular gig recommendations service – and the big audience of music fans signed up to that service – was a pretty decent USP. But the combined Songkick/Crowdsurge also started talking up another specialism: the management of pre-sale campaigns, where artists offer fans on their mailing list access to tickets before they go on general sale.

Songkick reckoned that it had the tools and the skills to manage such pre-sale campaigns better than its rivals. And, in particular, it said it had systems in place to try and combat the touts who try to infiltrate pre-sale campaigns in a bid to get their hands on some early tickets for in-demand shows.

It was around this pre-sales service that Songkick’s dispute with Live Nation erupted. In late 2015 Songkick sued its much bigger rival, alleging that the live music giant was exploiting its market dominance to stop artists from working with it on pre-sale campaigns. This behaviour, Songkick argued, was anti-competitive, and in breach of American competition law.

Live Nation strongly denied all those allegations, and so two years of intense legal wrangling began. During that time the original lawsuit has been both streamlined and extended. The additions mainly related to new allegations made by Songkick that staff at Ticketmaster stole trade secrets from the start-up and used them to develop its own rival pre-sales service. These new claims mainly centred on a former Crowdsurge employee who had subsequently joined Ticketmaster.

Then, in July last year, as the legal battle continued, Songkick’s original gig recommendations app – and the Songkick brand itself – were both acquired by Warner Music, the owner of which – Len Blavatnik’s Access Industries – was a key investor in the Songkick company. But that acquisition did not include the Songkick ticketing platform, which subsequently announced it was closing down.

Warner also didn’t buy the legal battle with Live Nation, which is now being pursued by the remains of the standalone Songkick business, despite it no longer having any active operations. Nevertheless, that Songkick eagerly awaits its day in court. And, as it closed down its ticket platform in October, it got in one more dig, declaring that the shutdown had been caused “when Ticketmaster and Live Nation effectively blocked our US ticketing business”.

The whole matter should have finally got to court late last year, but some extra delays pushed the proceedings back into 2018. Once it gets there, it will be a very interesting case to watch. Not least because it’s not only Songkick that has long griped about the ever-increasing dominance of the ever-acquisitive Live Nation, with a number of other players in live music, ticketing and artist management wondering just how dominant the global live giant can become before competition authorities intervene.

And you sense many of those people are awaiting the outcome of the Songkick dispute in the US with great interest. Not necessarily because of any particular precedents that may be set in American law. After all, you could argue that, as it has evolved, the actual Songkick v Live Nation dispute has become less about anti-competitive behaviour and more about alleged industrial espionage.

However, plenty could be exposed about Live Nation’s operations and dealings once the dispute is in court, and that will be very interesting indeed to the live giant’s competitors and critics around the world.

2. WIXEN V SPOTIFY
This is a brand new case filed in the closing days of 2017, though it is just the latest chapter in a long running story that is really about the failings of American copyright law and the US music licensing framework, but which has tended to focus on lawsuits between angry songwriters and music publishers and the emerging streaming platforms. And chiefly Spotify.

To understand this dispute, we need to talk about the way streaming services are licensed by the music industry, and why – on the song rights side – things are different in the US to nearly every other country.

Services like Spotify stream recordings of songs, and therefore need licences to exploit both the record industry’s recording copyrights and the music publishing sector’s song copyrights. It is also generally agreed that delivering a stream involves both copying and communicating music, which in music publishing jargon means streaming services exploit both the ‘mechanical rights’ and the ‘performing rights’ in songs.

It is the mechanical rights that have caused all the problems. When it comes to the performing rights, US streaming services can get so called blanket licences from the performing rights organisations ASCAP, BMI, SESAC and GMR. Each month it hands over usage data and money to the societies, which are then charged with the task of working out which songwriters and publishers are due royalties based on what songs have been streamed.

In most other countries, similar collecting societies exist for mechanical rights. In some countries, it’s the same collecting society as for performing rights. Which means that, although some music publishers do actually license some of their song rights directly to streaming services, a digital service provider can usually get a ‘mop up’ licence from a collecting society covering pretty much every other song ever written.

Streaming services need such ‘mop up’ licences because they don’t actually know what songs are streaming on their platforms. Once a record label has done its deal with the DSP, it pumps its recordings catalogue into the streaming service’s servers. But the label only controls the recording rights, and it doesn’t tell the DSP who controls the song rights. Or even what song is contained within any one recording.

Therefore the DSP really needs a blanket licence covering all musical works to ensure it is able to pay all the royalties due whatever songs may be contained within any one label’s recordings.

But in the US, there is no collecting society for mechanical rights. That’s partly because American copyright law provides a compulsory licence that covers mechanicals. This means that songwriters and publishers are obliged to license music users that wish to exploit their mechanical rights at royalty rates set by a statutory body. But, under that compulsory licence, the music user must still alert the copyright owner that their music is being used and arrange to pay the royalties that are due under law.

In the world of CDs, the label sorted the mechanical rights licence, and in America it usually employed an agency to identify the song, locate the songwriters and publishers who had a stake in said song, and make sure they got paid. When iTunes appeared on the scene, unlike in Europe, the labels continued to deal with the mechanicals. But when on-demand streaming arrived, it was decided that the digital firms, rather than the record companies, should take on responsibility for those royalties.

Many DSPs hired the same agencies that the labels used to manage the admin of the compulsory licence. Spotify hired the biggest, the Harry Fox Agency, which until 2015 was owned by the American music publishing sector’s trade body.

Unlike a label, that would usually need to sort out the mechanicals on whatever ten songs appeared on the next album it was putting out, Spotify et al needed to sort out the licensing of millions of songs from the off, with a flood of new tracks being added each week. Given HFA didn’t have the best of reputations for efficiency even in the CD era, it was perhaps unsurprising that it failed to rise to the digital licensing challenge.

Which meant that as streaming boomed, many American songwriters and music publishers – although receiving performing right royalties through the collecting societies – were not getting the mechanical royalties they were due.

Some would argue that this was primarily the fault of the music publishing sector itself, for failing to set up a proper mechanical rights collecting society. Or for failing to ensure HFA was better at its job while it was owned by the industry. Or for failing to build a publicly-accessible comprehensive copyright ownership database that would mean that digital services could work out for themselves who was due mechanical royalties.

However, whatever the failings of the American music publishing sector, in the eyes of US copyright law it was the duty of the DSPs to ensure paperwork was filed and royalties paid in line with the compulsory licence. Which meant Spotify et al were liable for copyright infringement for every song they had streamed without doing the required admin tasks. And given American copyright law provides statutory damages of up to $150,000 per infringement, potential damages were high.

And so, slowly but surely, the streaming companies were sued for copyright infringement. Most on-demand streaming services have now been sued by one songwriter or publisher or another, but it’s the Spotify cases that have got by far the most press.

With the potential of millions – if not billions – of dollars of damages being claimed, Spotify unsurprisingly sought to solve the mechanical royalties problem by negotiating some settlement deals.

First it negotiated a settlement with the National Music Publishers Association, which the songwriters and music publishers of America were then invited to opt into. Second, Spotify began negotiating a separate settlement with the lawyers leading a class action on behalf of a group of songwriters and publishers who had chosen not to participate in the NMPA arrangement. That class action had actually started off as two lawsuits – respectively led by songwriters David Lowery and Melissa Ferrick – though the two actions had been combined into one in the courts.

Both those settlement deals included compensation for past mechanical royalties that had gone unpaid, and also some commitments to the effect that Spotify would work with the music publishers to put in place a system to ensure everyone got paid in the future. Though quite how that would work without the aforementioned publicly-accessible comprehensive copyright ownership database wasn’t clear.

Either way, neither of those deals stopped new lawsuits from being filed against Spotify over unpaid mechanicals. Presumably concerned that, however many deals it did, there could be an almost infinite procession of mechanical royalty lawsuits from songwriters and music publishers who were unimpressed with their streaming income, Spotify started looking for other options.

That included submitting to court the rather bold new argument that, despite its own past statements to the contrary, Spotify now reckoned that mechanical royalties were not, in fact, due on a stream. Instead a stream only exploits the performing rights of the song, meaning that a streaming service should only have to pay royalties to the performing rights organisations.

That was a controversial position, given it has been widely agreed across the world that a stream involves both the copying and communicating of music. Though, it is true, copyright law doesn’t specifically define a stream. And the desired outcome of Spotify’s new argument – that songwriters and publishers would earn the same amount of money but via one payment system instead of two – had some logic to it.

The specific lawsuit in which Spotify made that bold new argument is still going through the motions. Meanwhile, behind the scenes, Spotify’s allies in the music community began considering a radical overhaul of America’s mechanical rights licensing system. Which basically means introducing the system already employed pretty much everywhere else in the world, where a collecting society offers streaming services a mop-up blanket licence covering pretty much every song ever written.

Because of the aforementioned compulsory licence, that would require a rewrite of American copyright law. To that end, just before the end of 2017, new legislative proposals were presented in US Congress under the name the Music Modernization Act.

This legislation would set up a collecting society for mechanical rights in the US for the first time, and that society would offer streaming services blanket licences.

As a kickback to the songwriters and music publishers, the act would also overhaul how royalties are set whenever collective licensing applies to song rights in the US, including performing rights as well as mechanical rights. Which is an attractive kickback, because songwriters and music publishers are convinced that the current royalty setting system repeatedly undervalues music.

The Music Modernization Act is backed by music publishers, the existing US collecting societies, songwriter groups and the streaming sector. And the people behind the proposed legislation hope that that consensus might ensure the Act doesn’t get stuck in Washington for years, as often happens with proposed copyright reform. Though, while some music publishers and songwriters may support the Music Modernization Act, that doesn’t mean all music publishers and songwriters support it.

And so enter Wixen, an independent music publisher representing plenty of big name songwriters like Tom Petty and Neil Young, and members of Rage Against The Machine, Weezer and The Black Keys. It’s had problems with all of Spotify’s proposed settlements to date, and it spent a chunk of last year telling the court considering the Lowery/Ferrick class action that the deal on the table was insufficient.

Or, in Wixen’s words, “the settlement agreement is procedurally and substantively unfair to settlement class members because it prevents meaningful participation by rights holders and offers them an unfair dollar amount in light of Spotify’s ongoing, willful copyright infringement of their works”.

Then, just before 2017 ended, Wixen file its own lawsuit on the mechanicals issue, seeking $1.6 billion in damages, the high figure being the result of the publisher’s sizable catalogue of works and the aforementioned statutory damages.

Wixen is one of the music publishers which has issues with the Music Modernization Act. Indeed, it claims that it is one provision in that proposed legislation – regarding the impact the new licensing system would have on any ongoing mechanical royalty disputes – that has forced the company to go legal at this time, even while it is concurrently participating in the ongoing legal wrangling around the Lowery/Ferrick settlement.

The company’s President Randall Wixen said in a statement this week: “We are very disappointed that these services will retroactively get a free pass for actions that were previously illegal unless we actually file suit before Jan 1 2018. Neither we nor our clients are interested in becoming litigants, but we have been faced with a choice of forfeiting rights and damages, or taking action at this time”.

Adding that he was actually supportive of much of the Music Modernization Act, while also insisting that he hoped an amicable settlement could still be reached with Spotify, Wixen went on: “We regret that this otherwise admirable proposed bill has had this effect, and we hope that Spotify nonetheless comes to the table with a fair and reasonable approach to reaching a resolution with us. We are fully prepared to go as far forward in the courts as required to protect our clients’ rights”.

So, Wixen’s lawsuit could be seen as a negotiating tactic and/or a contingency plan, though that won’t stop the independent publisher driving a hard bargain in both the courts and Congress as both its lawsuit and talks around the Music Modernization Act progress. Both coincide, of course, with Spotify’s long awaited listing on the New York Stock Exchange, which looks like it will now finally occur in the first quarter of this year. Once listed, additional scrutiny will fall onto the streaming firm’s finances.

One lawyer following these matters, Luke DeMarte from Michael Best & Friedrich LLP’s Chicago office, reckons that Wixen could well negotiate its writers a better rate from Spotify as a result of its litigation. Though, with the loss-making streaming services already operating on very tight profit margins, what might that mean?

DeMarte: “I believe Wixen’s suit against Spotify is likely to settle, with Wixen’s writers and publishing companies receiving greater royalties than they would otherwise stand to receive through the Lowery/Ferrick class action settlement or if Spotify were paying the statutory royalty rate. Other publishers opting out of the class action settlement may have similar success”.

“That would be good news for songwriters, but potentially bad news for consumers”, he adds. “As the company is under pressure to improve profitability in light of its impending [stock market listing], Spotify’s subscribers should expect to have its increased cost of doing business passed down to them. Spotify’s free subscription tier may be an initial casualty, with price increases to the paid subscription tier to follow”.

If either of those things – ie a cut back on freemium and/or a price hike on premium – did occur, it would be interesting to see what that did to Spotify’s market-leading growth rate.

Subscription streaming is a scale business, and to succeed the streaming platforms need massive scale. To date, Spotify has achieved by far the most impressive premium sign-ups – having just passed the 70 million paying subscribers landmark – though even it has not, as yet, got a sufficiently large user-base to be commercially viable long-term.

All of which makes the high-profile legal battles between Spotify and the American songwriters and publishers all the more interesting to watch.

3. SPINAL TAP V VIVENDI
Legal battles between artists and record companies are nothing new, though most settle out of court via confidential settlements, so that grievances are rarely aired in court. Which can be frustrating for other artists when those disputes centre on industry-wide concerns like transparency, royalty reporting, rights ownership and the application of old contracts in the context of the modern music industry, issues where some judicial insight would be useful for those acts who can’t really afford to pursue their own litigation.

One lawsuit that could provide some judicial insight on some of those wider concerns is actually a movie industry case. Though it’s a movie industry case that has a band at its core. Albeit a fictional band. And that’s the high profile legal battle between the creators of ‘This Is Spinal Tap’ and French entertainment industry conglomerate and Universal Music owner Vivendi.

It was Harry Shearer that kick-started this legal battle, but he was subsequently joined by the other three men behind the ‘Spinal Tap’ franchise: Christopher Guest, Michael McKean and Rob Reiner. As a result of various acquisitions, Vivendi ended up owning ‘This Is Spinal Tap’ via its StudioCanal film business. As it happens, Universal Music controls the accompanying soundtrack.

The ‘Spinal Tap’ lawsuit accuses Vivendi of misreporting financial information about the cult film and its various spin offs in order to short-change the four creators who had a profit-share arrangement with the original producer.

Or, in the words of those four creators, Vivendi “wilfully manipulated certain accounting data, while ignoring contractually-obligated accounting and reporting processes, to deny [the] co-creators their rightful stake in the production’s profits”.

For its part, Vivendi has dubbed the ‘Spinal Tap’ litigation as “absurd” and sought to have the case dismissed. In the legal wrangling that followed, the ‘Spinal Tap’ four were told by the court that they needed to provide more evidence over the specific accusations of fraud they had made against the entertainment conglom, and also that they had to sue in their own right, whereas Shearer, McKean and Reiner had sued through their respective companies. To that end, in October updated legal papers were filed, and Universal Music was added as a defendant in its own right.

Throughout all of this, Shearer, his collaborators and their legal reps have been very out-spoken in relation to the dispute. And Shearer in particular sees this legal battle as an opportunity to put the spotlight on wider issues in the entertainment industry. To that end, the legal battle even has its own official website, fairnessrocks.com.

The home page of that website declares: “This US legal complaint is important for all creators and artists. Popular music and films make huge money for rights-owning corporations. Yet, too often, the artists and creators get a raw deal from exploitation of their talent. We want to help rebalance this equation”.

It goes on: “It’s been 33 years since ‘This Is Spinal Tap’ was released. Yet we, the creators, have been told that global music sales from the soundtrack album total just $98. We’re also, apparently, only entitled to share $81 (between us) from global merchandising sales. This shocks us, given ‘Tap’s enduring popularity. So, Vivendi – it’s not a big ask. Just show us how you’re exploiting our creative work and pay us a fair share”.

As the new legal papers were filed in October, Shearer himself added: “The scale and persistence of fraudulent misrepresentation by Vivendi and its agents to us is breathtaking in its audacity. We are slowly unpeeling an onion that’s beginning to look rotten to its core. One just has to wonder how these defendants are treating other filmmakers and musicians”.

Meanwhile, earlier in 2017, Guest stated: “We’re doing the right thing, and most importantly, we are setting a precedent for similarly aggrieved artists who can’t afford to do this themselves. We’re sending a message not just to Vivendi, but to the so-called Hollywood accounting cabal as a whole: treat creators from the outset with genuine fairness and respect”.

With that sentiment at its core, it will be fascinating to watch this case proceed.

4. DURAN DURAN V SONY/ATV
Although a UK case, this dispute also requires an explanation of a specific feature of American copyright law. It all relates to copyright ownership, and in particular when songwriters create a song copyright and then transfer – or ‘assign’ – ownership of that song copyright to a music publisher.

Such assignment is common in the music industry, even though these days in the UK you would usually assign song rights to a publisher for a set period of time, after which the writer reclaims the rights. But in the past it was common for songwriters to assign their works to a publisher for ‘life of copyright’, so the publisher owns the copyright until it expires, which – in Europe – is currently 70 years after the writer’s death.

However, under the US copyright system, songwriters who assign their copyrights to a publisher have a statutory right to terminate that assignment – and claim back their rights – after 35 years.

This ‘termination’ or ‘reversion’ right was added to American copyright law in the 1970s. Though the time period before termination is allowed was longer for copyrights that had already been assigned when the new law was passed, which means it’s only relatively recently that American songwriters have started terminating past publishing deals, ie 35 years after the termination right came into being.

For that reason some ambiguities remain over exactly how the termination right works, because where there is ambiguity we are awaiting landmark court cases that provide clarity, and those only began once writers started terminating old contracts.

One such ambiguity is what exactly the US termination right means for British songwriters who signed deals with British music publishers under UK law. Can those songwriters employ the American termination right to take back the rights in their songs in the lucrative American market? And if so, how does that work, and can the specifics of old UK publishing contracts interfere in the process?

The big test case here is Duran Duran v Sony/ATV. When Duran Duran tried to claim back the US rights in their early songs – which were assigned to Gloucester Place Music, now a Sony/ATV subsidiary, in the early 1980s – the music publishing major said no such reversion was allowed under the terms of their English publishing contract.

Convinced that was not so, Duran Duran went legal, and the matter went before the High Court in London in 2016. The case hinged on some specific terms in Duran Duran’s old contract. And at first instance, Sony/ATV won.

At the time, the band’s Nick Rhodes told the BBC: “We are shocked that English contract law is being used to overturn artists’ rights in another territory. We signed a publishing agreement as unsuspecting teenagers, over three decades ago, when just starting out and when we knew no better. Today, we are told that language in that agreement allows our long-time publishers, Sony/ATV, to override our statutory rights under US law”.

He continued: “This gives wealthy publishing companies carte blanche to take advantage of the songwriters who built their fortune over many years, and strips songwriters of their right to rebalance this reward. If left untested, this judgment sets a very bad precedent for all songwriters of our era”.

It’s certainly true that many older songwriters who signed life-of-copyright deals with music publishers back in the day are watching all and any termination right cases with interest (there is a termination right element to the ‘Spinal Tap’ case too). For British songwriters the Duran Duran case is particularly interesting. And despite Sony/ATV’s victory at first instance, the band was given the all clear to appeal last year.

As that right to appeal was confirmed last February, Rhodes told reporters: “It was enormously disappointing that Sony/ATV decided to mount this aggressive and unexpected action against us to try to prevent the simple principles and rights afforded to all artists in America regarding their copyrights after 35 years. We are relieved and grateful that we have been given the opportunity to appeal this case because the consequences are wide reaching and profound for us and all other artists”.

And it’s with that in mind that we continue to watch this case with interest. With specific elements of Duran Duran’s original agreement at the core of the proceedings, the devil is definitely in the detail here, both in terms of this dispute itself, and any precedent that may or may not be set.

5. THE BLURRED LINES CASE
And so we come to one of the highest profile copyright cases of recent times, the dispute that had Robin Thicke and Pharrell Williams on one side and the estate of Marvin Gaye on the other, and which asked whether the former’s big hit ‘Blurred Lines’ ripped off Gaye’s track ‘Got To Give It Up’.

In a dispute that involved Thicke initially talking up how Gaye’s work had influenced his creative process, but later down-playing his role in writing ‘Blurred Lines’ entirely, and which perversely saw Thicke and Williams sue first, ultimately a jury decided that ‘Blurred Lines’ did indeed plagiarise ‘Got To Give It Up’. The Gaye estate was subsequently awarded $5 million in damages and a share in future royalties.

‘Blurred Lines’ was clearly inspired by ‘Got To Give It Up’, making this a classic ‘when does inspiration become infringement?’ case. Thicke and Williams argued that their hit and the Gaye track simply shared a vibe, and that lots of pop songs share vibes, and vibes aren’t protected by copyright.

The duo’s lawyers got even more specific about what was or was not protected by copyright, pointing out that the case centered on the ‘Got To Give It Up’ song copyright not the accompanying recording copyright.

And under American law, it was argued, copyright only protects those elements of a song specifically filed with the US Copyright Office. When ‘Got To Give It Up’ was written, only sheet music could be filed, and so only the sheet music version of the Gaye song was protected. And the features that ‘Got To Give It Up’ and ‘Blurred Lines’ share are not in the sheet music, they added. Therefore, they concluded, there was no infringement.

The judge hearing the case generally agreed with Thicke and Williams’ lawyers when it came to what copyright law specifically protected. To that end, the recorded versions of ‘Got To Give It Up’ and ‘Blurred Lines’ were not played in court. But that didn’t stop the jury siding with the Gaye estate.

Thicke and Williams promptly appealed that judgment and the appeal is now going through the motions – oral arguments were heard in court last year. The appeal mainly centres on those technicalities around what specifically copyright law protects, and whether the judge hearing the original case – despite agreeing with the Thicke/Williams side on the specifics – properly briefed the jury on those matters.

When the original ruling was made in this case in 2015, there was much debate on whether it set a dangerous precedent that could be detrimental to the art of songwriting. In August 2016, 212 artists signed a so called amicus brief supporting Thicke and Williams’ appeal which stated: “The verdict in this case threatens to punish songwriters for creating new music that is inspired by prior works. All music shares inspiration from prior musical works, especially within a particular musical genre”.

Though not everyone agrees with that viewpoint. Responding to Williams’ own criticisms of the ruling in 2015, one American lawyer watching the case – Michael Sukin – shared his take with the Financial Times.

Sukin noted how Williams had mused “there are songs that utilise other material, but until now [this] has not been copyright infringement, which is why this is so scary”. But “this could not be further from the truth”, the lawyer responded.

There was plenty of past precedent here, Sukin argued. He wrote: “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”.

“And 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 favour against Biz Markie, his record company and Warner Brothers Records, the distributor”.

Defending the ruling in the ‘Blurred Lines’ case, Sukin added: “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”.

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

It remains to be seen what the appeals court says about just how blurred the lines were in this case, both in terms of the alleged infringement, and in how the judge explained the specifics of copyright law to his jurors.



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