There's no denying Blured Lines as precedent for a forensic musicologist, or an intellectual property lawyer, or a potential plaintiff. In practically every engagement, I still find myself referring to Blurred Lines like it's the clear and present boogeyman that might decide to flip logic on its head. We've all read the articles about how composers and songwriters are shaking in their boots, afraid to create. And we remember a few months ago when Ed Sheeran threatened to give up songwriting altogether if he didn't wriggle out of his infringement case against Ed Townsend's daughter. But it's been five years. And there hasn't been a Blurred Lines level debacle since, right? So why are we all still wary that things are bound to go topsy turvy any second? Haven't all the verdicts since Blurred Lines begun to swing the pendulum back?
Well, there was Stairway To Heaven for one thing! That went to trial, Zeppelin won, but it took a ninth circuit en banc hearing on appeal to put it to rest. And then there was Dark Horse, which Katy Perry initially lost to the tune of $2.8 Million, but then was overturned. And then there was Lana del Rey getting sued by Radiohead over little more than a chord progression that they themselves had once defended plagiarising from The Hollies! And of course, there's Ed Sheeran, a musicology 101 course onto himself. He was sued because Shape Of You included the phrase "Oh I Oh I Oh I." And because Photograph sounded too much like Matt Cardle's Amazing. And because Thinking Out Loud used (approximately) the same well-worn chords in the same well-worn rhythm as Let's Get It On. And probably just because he's who he is, a terrific songwriter who writes easily understood and enjoyed songs -- no small feat -- but there's something about that universal appeal that will also tend to get you sued once in a while.
But what's striking here is that apart from Photograph versus Amazing, these all went to trial, and thus, came within inches of tragically wrong verdicts. Inches! Which says more about the economics of litigation in music copyright than it does about music.
We ask so much of juries. I actually have a jurors notice on my desk right now! If it's an intellectual property case, I suspect I won't be seated. Actually I suspect I won't be seated anyway, just for being a forensic musicologist, or a forensic anything! But suppose I am, and suppose the subject is astrophysics. I'll spend a couple of days hearing an absolute typhoon of evidence and opinion, conflicting expert testimony no less, and I'll be asked to arrive at a reasoned decision, and with perhaps a lot of money in the balance.
The worst system in the world except for all the others, perhaps. And hence the approach I'd take: "This is my responsibility. The judge let this go to trial. It must be a toss up! So I'll keep an open mind, try to absorb the information, do my best to do my duty to God and my country (name that tune). Except, is it really a toss up? Why should I think that?
I think that because I'm thinking that's what is implied! Isn't it? Or is it truer to say one side was given a huge pile of house money to bet when this made it beyond summary judgment and ultimately went to a jury trial -- a speed round where the game now could even be to confuse me into, indeed, essentially tossing a coin.
So no. I would not say the specter of Blurred Lines has gone away and won't until silly cases like "Thinking Out Loud" versus "Let's Get It On" get stopped earlier in the process. I've said it every which way at this point, the plaintiff's case was kept alive on slight of hand and distraction -- the musicology was a lot of "Look over here at how similar these elements are," when really such similarities were practically irrelevant, and they weren't the icing, but the cake. It wasn't even that hard to understand.
We can be too open minded. And in cases like this, an open mind looks too often like equivocation, even a refusal to adjudicate. It's wasteful. It placed Perry and Sheeran and even copyright in general within a whisper of minor tragedy, and it feeds a vicious cycle.
And honestly I don't have a great solution.