Do you ever watch the singing contest show The Voice?  One of its stars, singer-songwriter and producer, Pharell Williams has been recently been found liable ((along with co-writer Robin Thicke), for infringing the copyright in the song Got to Give it Up owned by the estate of the late great singer Marvin Gaye.  The jury awarded a record $7.3 million judgment against the Williams and Thicke mega hit Blurred Lines.   If you’re the judgmental type, you might conclude that maybe there’s something wrong with the affable and intelligent Williams.  My guess, however, is that something  is wrong with music copyright law instead.

To understand the problem, we need to recognize that sound recordings embody two separate copyrights:  one in the underlying sheet music of the song and one in the performance as recorded.   Williams and Thicke were only accused of violating the copyright in the sheet music as written by Marvin Gaye, the copyright statutes says that one can only violate the separate copyright in a sound recording by being a pirate, by ripping yourself free copies of the recording.  If instead you hire a band and make your own exact sound-alike recording, then you are not an infringer of the sound recording you imitate, only the underlying music written by the composer.

This, of course, means that just because two recorded songs sound alike does not mean that they are infringing.  The similarities may well come from voices of the singers, the style of instrumental and vocal performance, the choice of instrumentation and mood, and other things sometimes not designated in pop music scores like rhythm, percussion, and tempo.   In other words, Blurred Lines should only be infringing if Williams copied too much of what was on the page of Marvin Gaye’s published sheet music.

For this reason, the judge correctly refused to play for the jury a mash-up made by the plaintiffs showing how much the songs sounded alike when played over each other.  In this case, where Williams’ admitted to trying to capture the uncopyrightable “vibe” or “sound” or “mood” of Got to Give it Up, keeping the actual Marvin Gaye recording from the jury is critical.  However, the court did allow some sort of performance of the song—from the news reports we don’t know exactly what–and that performance may have unduly influenced the jury.  One commentator has concluded that:

“Blurred Lines” relied neither on that progression nor on any progression recognizable in “Got to Give it Up.” It didn’t share any of the same notes or lyrics. The jury’s ruling was based on a shared “sound” or “feel.”

A recent human subjects experiment by Jamie Lund captured the problem nicely.  She established several panels of mock juries that heard identical evidence from real music infringement cases.  The group that heard the most popular recording of the plaintiff’s song along with the defendant’s accused recording found infringement in 80% of the cases.  When mock juries where confronted with the exact same facts but with a computer program playing the plaintiff’s exact score and the defendant’s music side-by-side, the results were reversed.  The defendant won over 70% of the time.  In other words the, initial impulse of the court in the Williams case to deny the jury access to the Marvin Gaye recording was clearly correct.

Now, why does this matter?  Well, musicians have a clear sense about how much borrowing is too much.  All musicians borrow—all of them, especially some of our most famous names from history like Bach and Hayden.  They have long established community norms about what constitutes legitimate inspiration and how much constitutes wrongful misappropriation.  Music copyright law is about protecting them and their interests.  Shouldn’t we defer to the borrowing norms of the very community that the law is supposed to protect from borrowing?

In Farrell’s case, and cases like it, musicologists on both sides are asked to testify as to whether what was taken by the defendant was “too much of what was pleasing to the ears of a lay listener.”  That’s an invitation for experts to trick an unsophisticated jury to base liability on similarities that they hear.  Why not establish for the jury instead what is considered acceptable borrowing by musicians in a particular genre?