‘Blurred Lines’ creates bad law for music industry | Miami Herald

If the devolution from Marvin Gaye to Robin Thicke doesn’t stand for the decline of Western civilization, nothing does. The Los Angeles jury that found Thicke’s Blurred Lines unintentionally plagiarized Gaye’s Got to Give It Up apparently agreed.

Choosing the dead genius over the living epigone was artistically correct — but it set a terrible legal precedent. The case turned on a deep question about of copyright law: Is the point to protect the moral rights of the original author or to maximize socially valuable artistic production? The jury went with the author. It was wrong to do so. And Pharrell Williams, the true author of Thicke’s song, can help us see why.

Start with the most important part, the question of what copyright law is supposed to do. Historically, copyright began as a government grant of a printing monopoly, encouraged by the stationers guilds that controlled printing. The first important modern copyright law, the Statute of Anne (1710), already justified copyright in terms of growing social value by encouraging more useful work to be published. Its full title was “An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned.” Whatever the real-world political economy of the law’s passage, the formal rationale was aimed at creating a better profit motive for authors and publishers. The law created new legal rights for authors. It didn’t depend on some prior conception of an author’s moral rights.

Over time, however, as authors’ rights came to be normalized, a moral theory developed to justify the existing practice. Instead of focusing on social utility, the moral theory of copyright focuses on the inherent right of a creator to control the thing created. On its own terms, the theory sounds appealing — especially if you’re an author. In most civil law countries, such as France and Germany, the artist’s moral rights enable a creator to protect work from the kinds of distortions and misuses that authors naturally hate.

In the United States, the moral rights theory has never predominated in copyright thinking — but it has nosed its way into both the official discourse and the public’s instinctive reaction to copyright questions. The Los Angeles jury couldn’t have avoided being influenced by it. They were played two songs with very similar bass lines. Although they weren’t supposed to be influenced by the Blurred Lines video, it has more than 370 million views on YouTube, and it’s hard to imagine that they could keep it completely out of their calculations. As you know if you live in the United States — or maybe anywhere on Earth — the video became a cultural phenomenon, and launched the career of Emily Ratajkowski.

Compared to the genuine brilliance, cool and tragedy of Marvin Gaye’s life and death, the Blurred Lines phenomenon seems like a travesty – literally. One can only sympathize with the jury’s instinct to see Thicke as a thief of music, just as he’s undoubtedly trying to steal Gaye’s mantle in the video. Morally and artistically, it makes me wanna holler and throw up both my hands, as Gaye wrote in a very different context.

Yet the jury should’ve overcome its legitimate moral outrage and decided the case against Gaye’s estate. Focusing on the author’s moral rights is the wrong way to think about copyright – and it has perverse effects of artistic creation.

The permanent control over the author’s work sounds appealing — except for the fact that we don’t actually control our children in perpetuity. In fact, nothing we create belongs to us forever, particularly if we choose to sell it.

What’s more, future artists need to make art that refers to the works of their predecessors. If you don’t think Thicke is much of an artist, the same can’t be said of Williams, who according to Thicke’s testimony at the trial, actually wrote the song. I’m not saying Williams is anywhere near the level of Gaye, but he’s certainly a creative artist, with a varied oeuvre of songs written for himself and others. Williams and his songwriter colleagues, like all artists and authors, work by incorporating, commenting on and transforming earlier works.

The copyright goal, then, should be to maximize the creation of valuable works of art — which means asking whether a finding of copyright infringement serves that goal. The Blurred Lines verdict clearly doesn’t. Would Gaye have written Got to Give It Up in 1977 even knowing that its bass line might be ripped off in 2013? Of course he would have. He and his heirs have had 38 years of opportunity to profit from the song’s proceeds.

Indeed, Blurred Lines probably had the effect of increasing sales of Gaye’s work, not functioning as a market substitute for them. Williams and Thicke (and yes, Ratajkowski) were effectively referring knowing listeners back to the Gaye tradition, where they might download songs and even buy albums.

Blurred Lines therefore increased artistic creation. But the finding against the song will inhibit future artists who want to produce work inspired by earlier music. That will be a cost to artistic creation. In the end, whatever we think of Thicke’s musical future, we the public seem to want more Williams songs, not less. We should get the music we want; it’s probably the music we deserve.

Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard and the author of six books, most recently “Cool War: The Future of Global Competition.”

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