This is an addendum to the 2014 Music Rights whitepaper authored by Jason Peterson and published by the Entertainment Merchants Association.
It isn’t often that a court case comes down that illustrates music copyright infringement principles almost perfectly. Lucky for us, and unlucky for Robin Thicke and Pharrell Williams and their music composition “Blurred Lines” serves as an excellent example.
The Facts: Pharrell Williams and Robin Thicke co-wrote and performed Blurred Lines which was a global phenomenon reaching #1 on the charts. The YouTube video has over 370 million views. The estate of Marvin Gaye believed that Blurred Lines was a work derivative of Marvin’s 1977 chart topper “Got to Give It Up”. They accused Williams and Thicke who promptly sued the Gaye Estate for a declaratory judgment of non-infringement. That backfired and led to a $7.4M judgment against Williams and Thicke. The jury verdict is on appeal.
Why it Matters to a Movie/TV/Game Distributor: Copyright is strict liability. If you licensed Blurred Lines for synchronization with your movie, television show, or game or even simply distributed copies on a soundtrack related to your audiovisual title then you are also a potential defendant in this case. If you lose you may become jointly and severally on the hook for the ENTIRE verdict. Part of the verdict might include an injunction against your continued distribution of your product that includes the infringing work. The economic damages to you could be massive by way of lost profits!
I have seen and been a part of cases where the plaintiff, to put pressure on the distributor defendant, sues the entire supply chain including every retailer, knowing full well there is a chain of indemnity leading back to the master distributor. You are on the hook for not only the verdict but the legal fees of every downstream indemnitee. With legal rates going $500 or more dollars per hour the legal fees can dwarf the verdict.
What to do about it BEFORE a suit materializes:
- Know that it’s very hard to sue someone successfully. Courts are currently 12-18 months backlogged and it is usually $25,000 to retain a law firm to initiate or defend a case. So the risk is really only material when large dollar amounts are involved. This means you may want to avoid licensing ‘hit’ songs unless you are willing to defend a case.
- Always get representations and warranties the musical work you are licensing is original and non-infringing.
- Always get an indemnity from your music supplier. This means they pay your bills. See if you can gain the right to control the defense or at least be involved because this is only as good as their bank account.
- Try not to give indemnities downstream to your licensees – if possible.
- Always purchase errors and omissions insurance that covers copyright liability and pays the legal fees of your indemitees.
What to do about it AFTER a suit materializes:
- Invoke your indemnities: and understand if those parties indemnifying you are capable of paying for and managing the defense.
- Invoke your insurance: if you have it you’ll be glad.
- Use your leverage: What can you do in a business context to put pressure on the Plaintiff?
- Counter-Claim: If you can counter-sue the original Plaintiff you can materially change the feel of the case insofar as the jury is concerned and we all know it’s not what we as humans ‘think’ about something, it’s how we ‘feel’ about it.
- Try and settle: sometimes you can settle for less than the cost of litigating. See if the counter party is willing to go to mediation or arbitration for a speedier and most cost effective resolution if you don’t want to drag them out in court (which can be a good strategy if you’re the one with deeper pockets).
- Understand what elements the Plaintiff has on file with the Copyright Office:
- First, unless the Plaintiff registered their copyrighted work with the copyright office prior to the infringement occuring they cannot receive statutory damages. This takes the bite out of the case in many situations where a timely registration was not made.
- Second, if you can invalidate their copyright they cannot successfully get a verdict. In the jury instructions the court was clear that the Gaye estate in the Blurred Lines case had to prove by a preponderance of the evidence that they themselves had a valid copyright.
- Third, the judge in the Blurred Lines case ruled that the Plaintiff could only use the materials on file with the copyright office as evidence in front of the jury. Only ‘lead sheets’ were on file. Lead Sheets specify only the melody, lyrics and/or harmony using one staff with chord symbols placed above and lyrics below and is commonly used to capture the essential elements of popular music song without specifying how it should be arranged or performed. This meant that the actual sound recordings of the composition could not be played by the Plaintiff to the jury. This makes proving infringement very hard. In most cases non-hit songs never have their lyrics registered with the copyright office and as such are VERY hard to enforce the copyright on. You may be able to win on this alone.