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US Blurred Lines decision could be applied in NZ

By Elliot Sim 

A US jury trial ruling which found Robin Thicke and Pharrell Williams in breach of copyright could have implications in New Zealand’s court system, copyright expert John Glengarry says.

A Los Angeles jury found the duo had copied Marvin Gaye’s 1997 hit song Got To Give It Up in their popular 2013 song Blurred Lines. Gaye’s family was awarded $7.3 million in damages.

Mr Glengarry is a partner with Buddle Findlay and member of the New Zealand Law Society's Intellectual Property Committee.

He says that when trying to determine a breach in copyright it’s about the substance and quality of what is taken rather than the quantity.

“It would be quite possible for a court in New Zealand to reach the same decision,” he says.

Mr Glengarry cites a 2011 Federal Court of Australia judgment which ruled the band Men at Work infringed the copyright in the song Kookaburra Sits in the Old Gum Tree – which was written by Marion Sinclair in 1932 – by incorporating a modified part of the melody of the song in the flute section in their song Down Under (also known as Land Down Under).

“That was enough to find an infringement,” Mr Glengarry says. 

“This [Blurred Lines case] is one of those situations where you have to look more closely at exactly what was alleged to have been taken and what was regarded by the court as being significant. Until we see that, I think we can only speculate as to whether a New Zealand court would come to the same decision. However, having compared the opening bars of the two songs, I can appreciate why the Gaye family would complain."   

He says once infringement is determined, the next thing to consider is how to account for profits or calculate damages.

Is capturing the collection of instruments and beats of another artist breaching copyright?

Ethnomusicologist, Dr Kirsten Zemke from the Department of Anthropology at the University of Auckland thinks the decision will surely be overturned.

“It has to, unless we want to completely change the way music operates … it’s going to really mess up genre.” 

Dr Zemke says that copyright in music before the latest decision focused on melody and lyrics, key elements which she believes were very different between the two songs in question.

“The family was accusing them of feel, which musically, you know, people copy that all of the time. Especially if you’re doing a song in a particular genre. If you’re doing rockabilly, or you’re doing metal, you need to create the certain textures and a certain collection of musical instruments you use creating timbre, or sound, then bass lines and rhythms to create that ‘genre feel’.

“What they [Pharrell Williams and Robin Thicke] have done is copy the collection of instruments with the cow bell and the people in the background shouting, so I would call that a collection of timbre – a specific sound.”

Dr Zemke says the latest decision could mean that various dance genre (like techno, drum ‘n’ bass, and dubstep) could become the domain of one artist only.

“For instance if you want to do House Music you need to use the particular House Music beat and collection of instrument timbre and samples, so that it sounds like House music. Otherwise only one artist can do House music and that’s it. This would apply to all sorts of genre like Reggae, Metal, Bossa Nova etcetera, which are characterised by their beats and timbre collections.”

Last updated on the 16th September 2019