Newswise — Music lovers for decades have swayed to soulful tunes such as "My Girl" performed by The Temptations or "The Tears of a Clown," so smoothly sung by Smokey Robinson — they are part of the soundtrack of our lives.
But in many cases, these songs that entertained millions were written by ear, and not with standard musical notation. The composers, often people of color and from disadvantaged communities, clearly embraced excellence — but not always formal documentation.
The argument that composers who worked in this "aural musical tradition" deserve credit for the full composition that was often documented only in recordings is at the heart of a brief filed by University of Washington law professor Sean O'Connor, on behalf of the Institute for Intellectual Property and Social Justice, a Washington D.C.-based nonprofit, along with other professors of law, music and business, in the world-famous "Blurred Lines" copyright court battle between musicians Pharrell Williams and Robin Thicke and the estate of late soul legend Marvin Gaye.
O'Connor and colleagues filed an amicus curiae, or "friend of the court" brief with the Ninth Circuit Court of Appeals in Los Angeles on Dec. 29 supporting the verdict in the case — which favored the Gaye estate — but taking issue with what they feel is a key element of procedure.
The question behind the case is whether Williams and Thicke's 2013 hit "Blurred Lines" unduly copies from Gaye's 1977 hit "Got To Give It Up." The case was tried in early 2015 in United States District Court for the Central District of California, overseen by Judge John A. Kronstadt.
During the trial, Kronstadt did not allow the jury to hear the original sound recording of "Got to Give It Up"; they saw only a limited version of sheet music — called a "lead sheet" — for the songs on file with the U.S. Copyright Office. However, in the case of composers who work by ear, someone else at their publisher or record label drafts and files the lead sheet with the Copyright Office, often with no review by the composer.
In March 2015 a jury found Thicke and Williams, but not a third collaborator, T.I. (Clifford Joseph Harris Jr.) liable for copyright infringement and awarded the Gaye estate $7.4 million in damages. This was later reduced to $5.3 million.
Thicke, Williams and T.I. appealed the verdict in the Ninth Circuit Court of Appeals in August 2016. A group of about 200 musicians, including many well-known names, also filed an appeal, saying the verdict could have the effect of inhibiting musicians from making new music inspired by older works.
In their brief, O'Connor and colleagues support the decision but take issue with Kronstadt having forbidden the jury to hear the recording of "Got to Give It Up."
"The decision … preserves copyright social justice interests of inclusion and empowerment that benefit creators and users alike. The trial court correctly applied standard copyright doctrine regarding the scope of protection afforded to musical works, and thereby protected the appropriate range of creative expression without cramping the use of unprotectable ideas and elements by composers." The group added the decision does not impede artists “making fair use of even the protected aspects of a musical work."
They state also, however, that while the court correctly allowed expert interpretation of lead sheets in the case, “the trial court also could have, and should have, allowed the Gaye parties to submit the full phonorecording of 'Got To Give It Up' to show the entire scope of the composition Gaye actually wrote."
They add, crucially, "The copyright in 'Got To Give It Up' is in the composition as it was written and performed by Gaye in the studio, not merely the uninterpreted notations on a lead sheet, nor even in commercially released sheet music for an amateur market, that Gaye himself did not inscribe."
Composers who work in this aural tradition and aren't fluent in formal musical notation, or who rose from disadvantaged communities "and thus did not enjoy access to formal musical education have been routinely discriminated against when the copyright system has been incorrectly construed to require the use of such notation," they wrote.
O'Connor, a former singer-songwriter, said separately that the group submitted its brief because its members feel significant social justice issues are at stake for such composers.
"Many are or were artists of color or from disadvantaged backgrounds who did not understand the copyright system and for whom transcriptions and registrations of their works were made by others. In some cases, managers, labels and publishers exploited the situation, claiming co-authorship and otherwise not fully protecting the rights of the composers.
"The trial judge should have allowed the phonorecording," O'Connor concluded, “as Gaye himself was not fluent in formal sheet music notation and instead composed directly to recordings, as do many of the great 20th and 21st century pop composers."
Amicus briefs are those filed by nonlitigants who have a strong interest in the topic of the case, and are advisory to a court.
For more information, contact O’Connor at [email protected].