Music copyright cases illustrate the potential for confusion in business trials

I have high regard for my personal injury and employment trial colleagues.  However, in one respect I believe their jobs are easier than that of the business trial lawyer.  In a case involving injury or, say, employment discrimination, I think the issues and values at stake are clear and within the juries’ general knowledge.  Did the defendant act negligently and thus injure another?  Was the plaintiff fired for reasons legitimate or unlawful discriminatory reasons?  It may be hard for juries to get far off track when these are the questions to decide.

This is not always the case in business trials.  The juries will likely have no experience with claims involving breach of a technology licensing agreement or breach of fiduciary duties among partners.  The contracts at issue may be in legalese.  The jury instructions may be highly general and of little help.  The business trial lawyer is challenged to develop familiar themes and fend off potential confusion.  This can be hard.

Two music copyright trials illustrate this challenge.  First, there will be an appeal of the jury verdict that “Blurred Lines” by Pharrell Williams and Robin Thicke infringed Marvin Gaye’s 1977 hit “Got to Give it Up.”  Second, a federal judge has decided to let the copyright infringement case between trustee of a former member of Spirit and Robert Plant and Jimmy Page over “Stairway to Heaven” go to trial.

These cases illustrate that the line between inspiration and theft can be thin.

I don’t know how the jury was supposed to figure out the Williams case.  Due to an arcane twist in the copyright law, the jury was told not to decide whether Williams and Thicke copied the sound of “Got to Give it Up” but rather whether they copied the sheet music for “Got to Give it Up” that was deposited with the US Copyright Office.  The sheet music does not have the background chatter, falsetto whoops and claps that give the Gaye song its signature feel.  To add to the confusion the Gayes’ music expert was permitted to testify that notes actually written the sheet music inferred musical elements not actually present.  Huh?  How do you copy something that is inferred?

Reportedly Williams and Thicke did not help themselves by their testimony.  Thicke admitted that he was frequently drunk and high during interviews, that he lied to Oprah and that he actually had nothing to do with the song’s creation.  Thicke also admitted to a relationship between the “feel” or “groove” of the two pieces.  Williams gave combative testimony about how much he understood about music, and whether he could read or write music.

Fundamentally, what constitutes illegal copying in rock’n’roll, where the same basic chord patterns are reused frequently and there are only thirteen notes?  If one artist says he is attempting to achieve the “feel” or “groove” of a second artist but does not literally copy the chords and notes of the second artist’s song, is that illegal theft or legal inspiration?

It is a maxim of copyright law that copyright protects only expressions of ideas and not ideas themselves.  How was the jury told to make that distinction?  This is a quote from the jury instructions in the Williams case, which is from the approved pattern instructions for copyright infringement:

“Only the particular expression of an idea can be copyrighted.  Copyright law does not give the author the right to prevent others from copying or using the underlying ideas contained in the work, such as any procedures, processes, systems, methods of operation, concepts, principles or discoveries.”

This instruction does not address the distinction between ideas and expressions in rock songs.  The words are technical, not artistic.  Perhaps the judge could have instructed the jury that a “feel” or “groove” of a song is not copyrightable, but he played it safe by reading the pattern instruction.  Deviating from pattern instructions may result in more applicable instructions but heighten the chance of scrutiny on appeal.

“Blurred Lines” copies relatively few notes of “Got to Give it Up.”  I can only assume that the jury took a dislike to Williams and Thicke, played “Got to Give it Up” in the jury room even though they were told they were not deciding whether the sound was copied and voted for Marvin Gaye.

I doubt the verdict will withstand appeal.

In the “Stairway to Heaven” case, the trustee of the estate of late Spirit guitarist Randy Wolfe will be allowed to proceed to trial against Robert Plant and Jimmy Page.  The allegation is that Plant and Page heard the Spirit song “Taurus” and copied that song to write the introductory acoustic guitar passages of “Stairway to Heaven.”

There are numerous comparisons to the two songs on the Internet.  To my ear the signature acoustic guitar introduction of “Stairway to Heaven” not only copies the pace and feel of “Taurus” but many of the notes and chord changes as well.  There will surely be plenty of expert testimony at trial.  The jury instructions will probably be as uninformative as those in the Williams case.  I can only assume that the jury will play the two songs in the jury box and rely on their gut feel.

Trying business cases can be trying.