Before 2013, many artists and labels chose to litigate their disputes rather than consider a form of alternative dispute resolution (“ADR”).1 However, in 2013 the music industry along with the rest of the public witnessed the downfall of singer-songwriter Robin Thicke’s music career and reputation after he entered into a legal dispute with the family of Marvin Gaye over copyright infringement. The collapse of Thicke has given the music industry a new perspective on the risks and unpredictability of litigation. This article will use the case of Thicke as an example to demonstrate why alternative dispute resolution (ADR) can be an extremely valuable tool in the music industry, and why in certain circumstances it may be a better option than litigation.
On March 20, 2013, singer-songwriter Robin Thicke released the song Blurred Lines, featuring producer Pharrell Williams and rapper T.I (Clifford Harris Jr.). The song quickly garnered attention from the public. In the United States, the song topped the Billboard Hot 100 for twelve consecutive weeks, becoming the longest running number one single of 2013. It sold over five million copies in 22 weeks, and six million in 29 weeks, faster than any other song in digital history. According to the International Federation of the Phonographic Industry (IFPI), the song had sold 14.8 million copies by the end of 2013, becoming the best-selling song of the year worldwide.2
Although the song was successful, it created much controversy among the public. Critics asserted that the song promoted rape culture as lyrics such as “I know you want it” and “baby it’s in your nature” trivialized sexual consent.3 Tricia Romano from the Daily Beast wrote that “the song is about how a girl really wants crazy wild sex but doesn’t say it—positing that age-old problem where men think no means yes into a catchy, hummable song.”4 The song was so controversial that it was banned at multiple universities in the United Kingdom.5 The song’s music video, which featured nude models, was banned on YouTube for violating the site’s terms of service regarding nudity.6 The video has since been restored, but with an age restriction.
Controversy continued and later expanded to include the possibility that the song might have benefited from and been partially derived from the work of another artist, Marvin Gaye. Sometime after the release of Blurred Lines, the family of Marvin Gaye claimed that the song copied elements of Gaye’s 1977 song Got to Give It Up. At a cursory glance, the similarities between Blurred Lines and Got to Give It Up are difficult to discern. However, upon a careful listening to the Marvin Gaye song, it would seem reasonable for a person to mistake it for Blurred Lines as the beat and tempo of the songs bear a resemblance to each other.
The credit for writing Blurred Lines has sometimes been attributed to each of the performers, but according to Thicke, the song was actually written by Pharrell Williams.7 In testimony, Thicke admitted that Marvin Gaye’s Got to Give It Up was one of his favorite songs of all time.8 Although difficult to know if the Gaye song provided some inspiration, whether consciously or unconsciously, for the conception of Blurred Lines, it is not surprising that the Gaye family would be concerned and feel that their rights had been infringed upon.9
Marvin Gay was a prolific and successful singer, songwriter and producer who was inducted into the Rock and Roll Hall of Fame in 1987.10 His life tragically ended early at the young age of 44 having been fatally shot by his father.11 Got to Give It Up was one of a number of successful Gaye songs and was released in 1977 receiving much acclaim and achieving considerable success as a number one hit on multiple music charts.12
Nona Gaye, Frankie Gaye and Marvin Gaye III, children of Marvin Gaye, were determined to protect the legacy of their father and believed that he would be “vigilant about safeguarding artist’s rights” and would “give credit where credit is due.”13 The children of Marvin Gaye penned an open letter to fans and supporters thanking them and their mother for their “opportunity to set the record straight” for their dad and to note the broad implications that their case would have for the music industry at large.14
Interestingly, the Gaye family appears to suggest that litigation could have been easily avoided and would have welcomed a pre-release conversation.15 Instead, Pharrell Williams and Robin Thicke initiated a pre-emptive suit seeking a declaratory judgment from the court stating that no infringement had occurred. The Gayes responded with a counterclaim accusing the Blurred Lines songwriters of copyright infringement.16 Ultimately, the suit initiated by Thicke and Williams backfired, resulting in an unprecedented verdict and award to the Gaye family of nearly $5.3 million dollars and an ongoing royalty rate of 50 percent of future song related revenues.17
III. LEGAL ACTION
Robin Thicke, Pharrell Williams and Clifford Harris Jr. asserted they were threatened by Gaye’s family who alleged that Blurred Lines was sufficiently similar to Marvin Gaye’s Got to Give It Up to claim infringement. Specifically, Thicke, Williams and Harris stated that they were contacted by the family of Marvin Gaye, who claimed that Blurred Lines infringed on Marvin Gaye’s song Got to Give It Up and that if the songwriters did not “pay a monetary settlement of the Gayes’ claim,” the Gayes would “initiate litigation for copyright infringement.”18 Rather than wait to be sued, the Blurred Lines songwriters initiated a declaratory judgment action.
Thicke, Williams and Harris filed suit at the United States District Court, Central District of California Western Division alleging that they reluctantly file action in the face of multiple adverse claims from Marvin Gaye related dependents claiming that there is no similarity between their composition and the one performed by Marvin Gaye.19
In their suit, the Blurred Lines songwriters denied infringement, claiming “there are no similarities” between the two songs “other than commonplace musical elements.”20 The complaint stated that “the basis of the Gaye defendants’ claims is that Blurred Lines and Got To Give It Up “feel’ or “sound’ the same.” However, the Blurred Lines plaintiffs defended themselves by stating: “Being reminiscent of a ‘sound’ is not copyright infringement. The intent in producing Blurred Lines was to evoke an era. In reality, the Gaye defendants were claiming ownership of an entire genre, as opposed to a specific work….”21
In response, the Gaye family successfully countersued and by jury verdict, Thicke and Williams were found to have infringed the Gayes’ copyright in the musical composition Got to Give It Up in Blurred Lines. According to the jury the Gaye party suffered as a result of the infringement an amount of $4 million and a loss of profits of approximately $3.3 million.22 Later, U.S. District Judge John Kronstadt denied a bid for a new trial but did reduce the verdict down to $5.3 million.23 Williams, Thicke and Harris are currently disputing the verdict and have filed an appeal in the 9th Circuit Court of Appeals seeking to overturn the ruling that awarded damages and royalties to Marvin Gaye’s family.24 Oral arguments have been presented and a decision is pending.25
IV. IMPACT ON THE MUSIC INDUSTRY
The Blurred Lines lawsuit may have changed what constitutes copyright infringement in pop music, and as a result, musicians are being more careful, giving their influences writing credits and royalties to avoid similar situations.26 During a radio interview, hip hop artist Jidenna admitted that the decision to give Iggy Azalea songwriting credit was motivated by the Blurred Lines verdict.27 In the case of the Uptown Funk controversy, artist Trinidad James’ manager, Danny Zook, admitted that Blurred Lines might have been a deciding factor for settlement. “In wake of the landmark Blurred Lines verdict, which is currently under appeal, the music industry is being ‘more cautious,’” noted Zook.28 “Nobody wants to be involved in a lawsuit. Once a copyright dispute goes to a trial, [if a jury is used], it is subject to be decided by public opinion – and no longer resolved based entirely on copyright law.”29 These statements suggest that concerns raised by the Blurred Lines lawsuit may have made alternative dispute resolution in cases of copyright infringement a more attractive option.
V. ALTERNATIVE DISPUTE RESOLUTION
In retrospect, it is reasonable to wonder if Thicke, Williams and Harris miscalculated in their decision to file a suit to preempt any attempt by the Gaye family to initiate litigation for copyright infringement. Not only did the plaintiffs not achieve their goal, the resulting infringement verdict may have caused damage beyond the trio to include any number of other artists and the music industry at large. It is understandable why Thicke, Williams and Harris were determined to protect their interests. There was a significant amount of money at risk and for a proud and accomplished artist such as Williams, having his integrity challenged possibly damaging his reputation and calling to question his other prior works may have been too much for him to handle.30
While it is difficult to know if the Gaye family would have proceeded with litigation and if they truly were seeking monetary damages or were just, as they suggest, only seeking to protect the legacy of their father, it does appear that the family was open to discussion and possible negotiation.31 Also, it could be argued that it may have been good business practice for the trio to enlist the support of the Gaye family for their song as a tribute to their father. Instead of seeking to prevent an infringement action, Thicke, Williams and Harris could have in collaboration with the Gaye family devised a promotion plant that would have further promoted their already successful song and at the same time further enshrined Marvin Gaye and his work. This is an instance where litigation may have been ill advised, and ADR would have been a better approach.
A. What are the benefits of ADR in a copyright case?
In litigation, the judgement value is usually exceeded by costs and external effects. There are many benefits of ADR over litigation, especially in copyright cases. The most important benefits are the protection of reputation, cost and time saving, and control over the outcome.
i. Protection of Reputation
Much of a songwriter’s success comes from positive publicity. Litigation over copyright infringement could have an adverse effect in terms of damage to public perception and reputation.
Court cases, judgments and opinions are usually public record while the ADR process is confidential.32 If the parties settle through confidential ADR, this could save an artist damage from information found out during the process of litigation, such as discovery. In this case, much damage was done to Thicke’s reputation during the discovery process. In a deposition, Thicke admitted under oath that he was “high on Vicodin and alcohol” when he showed up to record his hit single Blurred Lines and that he “didn’t do a sober interview” for the entire year that he was promoting his 2013 album.33 Thicke stated, “Every day I woke up, I would take a Vicodin to start the day and then I would fill up a water bottle with vodka and drink it before and during my interviews,” he said. “I don’t recall many things that I said. In fact, I was quite surprised when I read them back sometimes.”34
ii. Cost and Time Saving
Litigation can drag on for years while ADR can offer a swift solution. In 2017, the Blurred Lines litigation is still ongoing; the dispute started in 2013.35 Four years of litigation could have been completed in a couple of hours if ADR was used. This would have saved all parties involved and the court much wasted time and money from trials and appeals.
Ultimately, the Blurred Lines creators paid $5.3 million in damages.36 However, the final cost of the entire litigation was likely much more. Taking into account costs such as discovery and attorney fees, the Blurred Lines creators must have paid much more than $5.3 million overall.
Litigation always poses a level of risk and unpredictability. Parties can never know how a jury will rule on a particular day. In this case, the Blurred Lines creators were pretty confident that they were going to win, so much so that they initiated the litigation. However, once litigation was started, the outcome was pretty much out of their control. If they had chosen a method of ADR, they could have chosen an arbitrator or mediator with special knowledge of copyright law rather than leave the decision to a judge or a jury.
B. Types of ADR that could have been applied in the Blurred Lines case.
There are several different types of ADR techniques that can be used instead of pursuing litigation. In the Blurred Lines case, if I were a part of the creators’ team I would have suggested that they try negotiation, mediation, or arbitration before considering any sort of litigation.
A negotiation in which all parties affected would be a part of would have been much more effective than the multiple trials and appeals that occurred and are ongoing in the Blurred Lines case. The Blurred Lines creators should have approached the Gaye family first before taking any official action. As mentioned above, the Gaye family was open to discussion and possible negotiation.37 Likely the reason that the Gayes countersued was that they were aggravated by the preemptive lawsuit initiated by the creators of Blurred Lines. If negotiation was used, the Blurred Lines creators and the Gaye family could have peacefully talked to resolve the dispute on their own without any necessary involvement from the court or any outside parties.
I would have suggested that the creators use an interest based approach in negotiating. An interest based approach in this situation could have helped to uncover which issues were most important to both parties. It appears that the Gaye’s were mostly concerned with protecting their father’s legacy. In an open letter from the family of Gaye, they state that “it is [their] wish that [their] dad’s legacy, and all great music, past, present, and future, be enjoyed and protected, with the knowledge that adhering to copyright standards assures our musical treasures will always be valued.”38 Most likely, the Blurred Lines creators valued the Gaye family’s concern of protecting their father’s legacy. Thicke stated to GQ that when he and Pharrell were in the studio, he “told him that one of [his] favorite songs of all time was Marvin Gaye’s Got to Give it Up.”39 The creators’ main concern was the protection of their song. These concerns were not exclusive and could have been reconciled. The creators’ valued Gaye’s song and the protection of it, and the Gaye’s likely would have understood the creators’ concern of protecting their song as well.
Thus, a negotiation in which both sides focused on their primary interests could have led to mutual agreement that would have left both sides satisfied with the outcome. For example, the Blurred Lines creators could have made an agreement to pay royalties to the Gaye family, or give credit to Gaye’s song as inspiration. The Gaye family may have been very satisfied with such an offer and it could have saved the Blurred Lines creators from any damage to their reputations.
If negotiation did not work, or if the parties were hesitant about using negotiation, I would suggest that they try meditation. Mediation is useful in situations when parties have a relationship they want to preserve. In this case, the Blurred Lines creators, specifically Thicke, should have considered the relationship with the Gaye family before initiating legal action against them. When asked about Marvin Gaye, Thicke said “…he’s one of my idols.”40 One would expect Thicke to take extra precautions to preserve a relationship with the family of his idol. Mediation could have accomplished this as the mediator could have helped facilitate a discussion between the parties and ensured that each party remained respectful.
Mediation is very effective when emotions are getting in the way of resolution. If negotiation left the parties frustrated with each other, or tensions rose in the mediation, an effective mediator could have heard the parties out and helped them communicate with each other in an effective and nondestructive manner. A mediator could have helped parties understand each other’s views or deal with animosity between parties. For example, if the mediator felt that things were about to get out of control, he or she could have separated the parties, and met with each side individually to come to a solution without escalating any tension.
A mediator can also help deal with differences in perceptions and interests between negotiators. For example, if the parties on either side were unwilling to negotiate or were not listening to their lawyers, the lawyers could have asked the mediator to discuss these issues individually and together try to figure out a way of moving past the clients’ issues.
If negotiation or mediation did not work, I would suggest that the parties attempt arbitration. Arbitration would have been a much better alternative to litigation in the Blurred Lines case. If the Blurred Lines creators had pursued arbitration, they would have had a much higher level of predictability. They could have taken part in choosing the arbitrators, choosing a panel with a proficiency in copyright law. They could have also had the ability to choose arbitrators who would be more in their favor. The arbitration would have been confidential and binding, and thus the controversy would have been over much quicker and would not have been publicized, preserving the artists’ reputations. Arbitration could have also saved the parties money. For example, if the arbitration process could have been completed in a day, the parties would really only need to pay the arbitrators for that day along with attorney fees.
The Blurred Lines case is a great example of why alternative dispute resolution is often a preferred and more appropriate better option than litigation. In this instance, litigation may have been ill advised, and ADR would have been a better approach. In retrospect, it does appear that Thicke, Williams and Harris miscalculated in their decision to file a suit to preempt any attempt by the Gaye family to initiate litigation for copyright infringement. Not only did the plaintiffs not achieve their goal, the resulting infringement verdict may have caused damage beyond the trio to include any number of other artists and the music industry at large. Cleary, the tools of alternative dispute resolution could have averted an adverse judgment and with some gracious and thoughtful consideration a successful solution could have been achieved. Compared with the cost, time and damages assessed, even a protracted ADR process would have been preferred.
Even if protracted and difficult, negotiation, mediation, and arbitration could have provided value and a desired result. It would not have been difficult for a representative of the Blurred Lines creators to have approached the Gaye family first before taking any official action. The Gaye family seemed open to discussion and possible negotiation. Artists within the music industry live in a relatively small world. In addition, given that Thicke considered Marvin Gaye to be one of his idols he should have considered the implications of litigation to his reputation and to his relationship with the Gaye family. Mediation is often useful in situations when parties have a relationship they want to preserve. In this case, a mediator could have helped facilitate a productive discussion between the parties and ensured that each party remained respectful. If unsuccessful, the Blurred Lines creators should have optioned for arbitration making sure that arbitrators would consist persons with a proficiency in copyright law. Results of the arbitration would have been confidential and binding, and thus the controversy would have never reached the quagmire that occurred as a result of litigation. ADR would have been less costly, quicker and confidential, preserving the artists’ money, reputation and emotional distress.
Eric Manski is a specialist in intellectual property at Garcia-Zamor Intellectual Property Law, LLC. He is currently pursuing his Juris Doctorate at the University of Maryland Francis King Carey School of Law in Baltimore, Maryland. He received his Bachelor of Science degree in Information Systems from the Robert H. Smith School of Business at the University of Maryland, College Park. Mr. Manski primarily focuses on trademarks, business entity formation, copyrights and patents, mainly in the fields of computer sciences and mechanical technologies.
If you have any questions regarding: alternative dispute resolution, protecting your artistic creations, copyrights, trademarks, fair use, the Digital Millennium Copyright Act (DMCA) or other intellectual property matters, please contact Garcia-Zamor Intellectual Property Law, LLC.
1 ADR in the Music Industry – Kaleen Scamman
18 SYMPOSIUM: THE CULTURAL IDENTITY AND LEGAL PROTECTION OF ART: Casting the First Stone: The Future of Music Copyright Infringement Law After Blurred Lines, Stay with Me, and Uptown Funk, 20 Chap. L. Rev. 177
36 supra note 23.