Blurred Lines Verdict Shows Importance of Discovery

I found this New York Times interview of Robin Thicke kind of interesting.  He talks a little about the verdict in the “Blurred Lines” copyright infringement case. For those of you who don’t know, Thicke lost an infringement suit to the estate of Marvin Gaye. Gaye’s heirs claimed “Blurred Lines” copied Gaye’s hit “Got to Give It Up.”  The jury returned a verdict of $7.4 million.  The case is on appeal.  

A number of commenters, including me have expressed concern with the ruling.  “Blurred Lines” is in no way a line for line copy of “Got to Give it Up.”    But there are some definite similarities in the songs’ style.  

And that’s the troubling part about the verdict.  If stylistic similarity is all that’s needed to establish copyright infringement, there may be a lot of litigation headed our way.  I say that for a number of reasons.  First, there are only so many chords.  So, songs are bound to overlap.  Want an example?  Check out the chord progressions in “This Magic Moment”  and “Run Around Sue.”   They’re identical.  But if you’re old enough to remember those songs, do you get them confused?  Think one copied the other?   

Second, musical artists influence one another.  How many pop bands emulated the Beatles?  How many folks singers drew inspiration from Bob Dylan?  But is that enough to establish a copyright violation?  Should it? How would that scenario limit the creative process?  The “Blurred Lines” decision is potentially terrible precedent.    

And based on Thicke’s interview in the Times, it’s possible the verdict resulted from Thicke’s deposition testimony in the litigation.  Thicke’s deposition testimony about how he came to write the song differed from accounts he’d given in interviews when he was promoting “Blurred Lines.”  He apparently tried to explain the discrepancy away by saying he was drunk when he gave the interviews.  He may have been, but that type of testimony doesn’t do much for the credibility of the witness.  And as is the case in almost all cases, the credibility of the key witness is, well, key.  This case depended in a large part on the jury believing Thicke when he said he didn’t copy Gaye’s song.  And if the jury didn’t think Thicke was credible, that testimony was bound to be a tough sell.  

In the Times interview, Thicke admitted he was “careless” in his deposition.  And that is a Cardinal Sin.  There is an old cliché that says you can’t win a case in a deposition, but you can lose one.  So no matter the case, it’s important to be prepared when giving deposition testimony.  Thicke’s carelessness is an illustration. It may not only have cost him the case, it may well impact thousands of artists who come after him.  Carelessness is really unacceptable.