Don’t blur your copyright lines or you might lose yourself in a damage claim

Two recent decisions in New Zealand and the United States of America illustrate the importance of and recognition given to copyright in the music industry, and the need to ensure that one obtains permission from the copyright owner when embarking on any musical venture that involves the use or adaptation of any third party musical material that may be subject to copyright protection.

Eminem

Marshall Mathers, also known as “Slim Shady” / “Eminem”, was recently awarded approximately US $434 000 in hypothetical royalty fees pursuant to a court order. The High Court of Zealand was of the opinion that the National Party committed an act of copyright infringement when it released a video as part of its re-election campaign utilising a highly similar soundtrack to that of Eminem’s world-famous hit “Lose Yourself”.

Although the National Party claimed that it lawfully purchased the track from a stock music library, which by the way is named “Eminem-Esque”, it was still found guilty of copyright infringement. Interestingly, Eminem’s team Eight-Mile-Style announced that the rapper decided to donate the entire amount to hurricane relief. This suggests that the matter had nothing to do with obtaining monetary relief but was directed at setting a precedential warning that speaks to the recognition of copyright in music for future artists.

Blurred Lines

Robin Thicke and Pharrell Williams embroiled themselves in a copyright infringement dispute over their hit single “Blurred Lines”, which earned them over US $16 million in sales and streaming revenue. The song was likened to the late Marvin Gaye’s 1977 song “Got to Give It Up”. The comparison sparked outrage from Marvin Gaye’s family who were convinced that Gaye’s song was stolen by Thicke and Williams. Ironically, Robin Thicke initiated pre-emptive legal proceedings to prevent the Gaye family from claiming royalties. This strategy backfired as Gaye’s family countersued Thicke and Williams.

Thicke and Williams had in the past publicly stated that they draw inspiration from Marvin Gaye and that they were influenced by Marvin Gaye’s song “Got to Give It Up” when producing “Blurred Lines” - these statements went a long way in proving at trial that Thicke and Williams had access to and had copied Gaye’s song. Whilst copyright in musical works vests in the first instance in the composition of the musical notes as expressed in a musical score, copyright can additionally lie in the sound recording of the music when extracted from the requisite musical score and the ownership of the copyright in these two distinct categories of copyright works can, as was the case in this matter, vest in different parties, the Marvin Gay Estate in the case of the musical score and the Musical Publishing Company, in the case of the sound recording of a performance of the musical score. This case concerned rights in Marvin Gaye’s songs’ musical score (hence the rights of the Marvin Gaye Estate), as opposed to rights in the sound recording (owned by the Musical Publishing Company) – although it was found that the copyright of the score occurred via access to it through the sound recording.

On comparison of the musical scores of the two songs, a California jury found that “Blurred Lines” adopted a similar rhythm, tempo and other musical elements to “Got to Give It Up”. On this basis it was deemed that Thicke and Williams were guilty of copyright infringement by replicating the “vibe” or “feel” that Gaye’s song evoked. Thicke and Williams were ordered to pay the Gaye family US $7.4 million for copyright infringement.

Omunye

To bring this copyright issue closer to home, South African group Distruction Boyz are currently facing a potential copyright dispute over their hit song “Omunye” as they are alleged to have stolen the track from DJ LAG’s “Trip to New York”, which was released three months before “Omunye”.  News reports suggest that a forensic copyright investigation has allegedly revealed that “Omunye” was stolen from “Trip to New York” but Distruction Boyz claim that, “the guy who sold us the beat told us he produced it and he did not even know DJ LAG”. Distruction Boyz maintain that the song is theirs and that they will continue to play it as they have received no legal notice informing them otherwise. Only time will reveal the outcome of this alleged copyright infringement dispute.

It is, therefore, recommended that you save the time, cost and complications that accompany a potential copyright infringement dispute by ensuring that you obtain consent from the actual copyright owner of the work you wish to use. If you are unsure who the owner of the relevant copyright is or whether you are actually infringing on anyone’s copyright, contact an intellectual property specialist before taking any further action. Failure to do so could mean a hefty copyright infringement claim.

(1) Eight Mile Style v New Zealand National Party [2017] NZHC 2603 [25 October 2017].
(2) Pharrell Williams, Robin Thicke and Clifford Harris Jr v Bridgeport Music Inc, Frankie Christian Gaye, Marvin Gaye III and Nona Marvisa Gaye, Docket No. 2:13-cv-06004 (C.D. Cal. Aug 15, 2013), Court Docket.
(3) https://www.sowetanlive.co.za/sundayworld/news/2018-02-13-distruction-b…