Appeal of “Blurred Lines” Verdict Backed by Artists

Roughly a year and a half after the highly controversial March 2015 jury verdict awarding Marvin Gaye’s children nearly $7.4 million in a copyright infringement lawsuit against Robin Thicke and Pharrell Williams, the “Blurred Lines” case is in the news again. Over two hundred songwriters, composers, musicians, and producers joined in the filing of an amicus brief in support of Thicke and Williams, who have appealed the verdict.

Following a trial in the U.S. District Court for the Central District of California, a jury concluded that Thick and Williams plagiarized Gaye’s 1977 hit “Got to Give It Up” to create “Blurred Lines,” the longest-running number one single of 2013. In July of 2015, the judgment was trimmed down to $5.3 million, and Gaye’s heirs were granted half of all future royalties from “Blurred Lines.” Thicke and Williams filed a notice of appeal that December.

The recent and overwhelming support of this appeal by the music community comes in the wake of a verdict that essentially creates artist liability for the creation of new works that are merely inspired by prior works, even unwittingly, rather than actually copied or plagiarized. The brief, whose signatories include members of Earth, Wind & Fire, Linkin Park, Weezer, Hall & Oates, and solo artists such as R. Kelly and Jennifer Hudson, points out that “by eliminating any meaningful standard for drawing the line between permissible inspiration and unlawful copying, the judgment is certain to stifle creativity and impede the creative process.”

While certain aspects of a musical composition are protectable by copyright, such as particular arrangements of notes and harmonies, others are not, such as style, feel, or the timbre of a certain combination of instruments. It became apparent early on that the verdict in this case relied almost exclusively on those non-protectable elements, as jurors seemed to pay more heed to stylistic similarities than the fact that Thicke’s “Blurred Lines” and Gaye’s “Got to Give It Up” are otherwise distinguishable works. Many artists forecast the possibility of this controversial verdict having a chilling effect on songwriting going forward. The filing of this amicus brief to overturn this result shows just how widespread that sentiment is throughout the music community.

Frank Gulino is an award-winning composer and attorney with Berenzweig Leonard, LLP. He can be reached at FGulino@BerenzweigLaw.com.

360 Deals: It Depends on How You Splice Them

Some things never change. It is true that the American music industry looks nothing like it did at the dawn of the new millennium, but major industry executives (and smaller, independent players) still have one central goal when signing new talent: high yield with low risk. With traditional streams of revenue, such as album sales and even digital downloads, waning more and more each year, labels are extremely motivated to monetize their investment in new artists. One of the most common means of doing this is the use of so-called “360 deals,” also known as “multiple rights deals.”

Unlike traditional recording contracts, which once confined themselves to taking a percentage of artists’ earnings from sales of records and a few other, related streams, 360 deals can give labels the right to take a percentage of almost any revenue that artists earn ‒ whether from product endorsements, book deals, or branded digital material. Rapper and artist Game has poked fun at the sweeping nature of such deals, quipping: “If I find a dollar on the sidewalk I gotta give (the label) half.” In their own defense, music execs contend that 360 deals incentivize labels to build their artists’ brands, as all parties profit when the artist gains revenue from multiple sources.

In any event, 360 deals have become the norm in the music industry, and show no signs of being replaced any time soon. It is thus important for artists to know about potential pitfalls and ways to guard against them. This is especially so because initial drafts are usually weighted heavily against the artist. They can also be riddled with loopholes that make deals far less profitable for the artist than they might initially appear. Closing these loopholes can be difficult, but there are a number of winning strategies available.

It is important, for instance, to take a stand as to which revenue streams will be off limits for labels and why the result is fair. Victories in this arena may be few and far between, but even minor wins can make a massive difference in the long run. Artists can also try to have the label give them some kind of consideration for each of the revenue streams in which the label is asking to share. If the label is asking for a cut of an artist’s acting revenue, the artist might ask the label to provide a theatrical agent, acting coach, or promotional support. Artists should also push for clear definitions of key terms, such as “net proceeds,” “support,” and “digital media.” Doing so not only saves confusion down the road, it can actually narrow the scope of rights granted to a label under the terms of the deal.

Of course, some are so interested in getting signed that they may be scared to stand up for themselves during contract talks. Artists should know, however, that when labels are genuinely interested in an artist’s content, they are often willing to consider 360 deal modifications that may lead to a mutual benefit for all parties. Yet even (and especially) when a label is strong-arming an artist, it is imperative for artists to seek legal counsel so that they are fully aware of the implications of their deals at the outset; some 360 deal terms have the potential to follow artists for years ‒ or even the whole of their careers.

Ryen Rasmus is an associate attorney practicing in the Entertainment and Music Industry Law Group of Berenzweig Leonard, LLP. He can be reached at RRasmus@BerenzweigLaw.com.