Harvey Gellar, a veteran music industry litigator at the firm Gradstein & Marzano, talked with The Frame's John Horn minutes after a verdict was announced Tuesday in the so-called "Blurred Lines" trial, in which a jury awarded Marvin Gaye's children nearly $7.4 million.
The jury determined singers Robin Thicke and Pharrell Williams copied their father's music to create "Blurred Lines," the biggest hit song of 2013.
The Gaye family "were establishing that their composition, which was memorialized in the sheet music, was infringed by the recording created by Pharrell [Williams] and Robin Thicke," Gellar said.
He added: "You still have to meet the standard in an infringement case that you actually copied or that you had access to the other person's property, recording or movie, and that what you created is substantially similar to theirs."
How do you get from $16.7 million in profits [for Thicke's recording] to this award? How does the math work?
There isn't a math calculation. Once numbers are presented to the jury, they're able to accept or reject any part of them. Sometimes you get something like a compromise verdict, where some jurors want to award a larger amount, other jurors want a smaller amount and they start horse trading. They arrive at a number they think is fair. There's usually some sense of rough justice in verdicts and this one appears to be the jury's attempt to do that.
Do artists typically have insurance for these types of things?
Most artists do not have insurance. Obtaining insurance for infringement claims would require an Errors and Omissions policy, which are hard to get, and even if you can get them, they're very expensive.
One of the issues in this case was that the copyright was over the sheet music — the composition, not the performance of the song. Does that mean the Gaye estate had a higher standard to prove infringement?
In any recording, there are two copyrights: there's the musical composition, which is embodied in the recording; and then there's a copyright in the recording itself. Here, the Marvin Gaye estate owns the copyright to the composition — I don't believe they own the copyright in the recording. That can be infringed by copying the composition in another composition or copying it in a recording. So, they were establishing that their composition, which was memorialized in the sheet music, was infringed by the recording created by Pharrell [Williams] and Robin Thicke.
Will this make artists more nervous when it comes to who influences them when they're writing songs?
No. Infringement cases have been going on for years and it's not just in the music area, you see it in film as well. Rarely do they have a chilling effect. You still have to meet the standard in an infringement case that you actually copied or that you had access to the other person's property, recording or movie, and that what you created is substantially similar to theirs. That's what the jury concluded here, but it's not going to stop artists from being inspired by earlier works.