Within the last 48 hours a US jury have found that the 2013 Blurred Lines single by Pharrell Williams and Robin Thicke was in breach of the copyright in Marvin Gaye’s song Got To Give It Up, released in 1977.
The Blurred Lines song was one of the best selling hits of all time and made more than $5 million for Williams and Thicke, which amounts to around £3 million. Following a finding of infringement, Marvin Gaye’s family have been awarded $7.3 million (around £4.8 million) in damages. In addition, the lawyer acting for Marvin Gaye’s family is reported to have stated that they will be seeking an injunction to stop the sale of the Blurred Lines hit until they can reach an agreement about how future money generated from sales will be received and shared. (See https://www.bbc.co.uk/news).
Although this is a US case, it raises some important questions and considerations about copyright law. For instance, from a UK perspective, when do you have copyright in your song? What constitutes an infringement of that copyright? What can you do about it?
When does copyright subsist?
In UK law, in order for copyright to subsist the work in question must fall under one of the categories protected by UK law, and to use this case as an example, a song would fall under the category of a “musical work” which receives protection. It must also qualify for protection, which will usually depend on the nationality or domicile of the author, or place of first publication. It must also be original and recorded. Finally, the term of copyright must not have expired. In the UK, the term of copyright for musical works is 70 years from the end of the calendar year in which the author died. By way of example, if Marvin Gaye had been a UK national, and given that he died in 1984, the copyright protection in the Got To Give It Up hit would last until 31 December 2054.
Once you have established that copyright subsists in a work, what rights do you have?
Firstly, the right to prevent others “copying”. Infringement of copyright can occur (amongst other things) in the event that someone:
If you are the owner of the copyright in a song you have the right to prevent individuals from using your work in this way. Normally, you do not need to show that the infringer had knowledge of your work or intended to infringe.
The Blurred Lines case dealt with the infringing act of copying a work. In UK law, copying in relation to a musical work means reproducing the work in any form. If someone copies the entirety of an original song this is very likely to be an infringement. However, to take these US songs as an example, when listening to the two songs, it is clear that Blurred Lines is not identical to Got To Give It Up. Under UK law, the key test is whether a substantial part of the song concerned has been copied. This is a qualitative test, not a quantitative one. It can therefore be very difficult to determine whether a potentially infringing song would be considered to be copying a substantial part.
If it can be determined that your work has been copied, what relief is available to you?
The most significant remedies you will be entitled to are damages or an account of profits (at your election), injunctions to prevent the continued copying of the work and delivery up of any copies of the infringing works.
The extent of any damages would be to put you in the same position you would have been if the infringement had not occurred and are designed to compensate you, usually by payment of a reasonable royalty, not to punish the infringer. Alternatively, you can seek an account of profits, which would entitle you to the profits made by the infringer as a result of their infringing act.
Conclusion
The jury’s decision in the Blurred Lines case has proved to be quite controversial. It is worth noting that in the UK, any intellectual property dispute would be determined by a judge, rather than a jury. However, what we can take away from this US example is that each case will turn on its merits when determining whether a substantial part of a work has been copied. There is not always a clear cut answer when a dispute such as this arises.
The current legal framework in the UK does not allow copying of copyright-protected material for training generative AI models, except where it is carried out with permission of the copyright owner or done in a research or study context and for purely non-commercial purposes.
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