The Associate’s Two Cents- The Blurred Lines of Derivative Works

We’ve all heard the phrase, “Steal from the best, but make it your own.”  But what exactly does this mean in copyright law?  Recording artists sample work from previous recordings, painters recreate photographs, books are adapted into film.  Much of what we see today with regards to creative works, we’ve seen or heard before in one form or another.  What’s more, this formula works well for the subsequent artist because if the public admired the first work, more than likely they’ll admire the second.  So why then is it not copyright infringement to sample a work based on someone else’s intellectual property?  How can many recording artists claim the copyright of his songs when a majority of the songs include samples of previous songs while others, like  Robin Thicke, was sued successfully by the Estate of Marvin Gaye?  This post addresses these questions along with: What is a derivative work?  Who owns the copyright to a derivative work?  How can a derivative artist avoid being sued for using a previous work as inspiration for a new work?  Legally, it’s essential to consider these questions before an artist samples and publishes work based on a work that is protected by copyright.  As we know from the “Blurred Lines “case, damages in copyright infringement cases are a reality.

What is a Derivative Work?

According to 17 U.S.C 101, a Derivative Work is: 1) Based on one or more pre-existing works such as a translation, musical arrangement, dramatization, motion picture version, sound recording, art reproduction, or any other form in which work may be recast, transformed, or adapted.   2) A work consisting of editorial revisions, annotations, elaborations, or other modifications which as a whole represent an original work of authorship is a derivative work.

So, a derivative work must be BASED ON one or more pre-existing works, rather than a copy of it.  If this “basing on” is done successfully and the new artist can “make the work his/her own” then it can be considered a new work and a new copyright can be enforced.  But, the line between a new work and a copy is not always easily distinguishable.

Over the years, the courts have addressed what is required in order for a work to be protected by its own copyright.  Essentially, “A copyrightable work must contain some substantial, not merely trivial originality.  [1]  Courts and juries will look at how new, novel, unique, or distinguishable a new work is from the original work in deciding whether it is derivative or a copy.   Look at the picture above.  Do you think that any of the derivative works to the to the right of the original is “original” enough to garner its own copyright protection?  Why or Why not?   Post your comments below.

Blurred Lines of Derivative Works

Let’s use a recent popular media case to illustrate this.  Even though the issue in the “Blurred Lines” case was not whether the “Blurred Lines” song is a derivative work, the Gaye Estate argued that the song contained elements of a Marvin Gaye original work, “Got To Give It Up.”  So using our previous analysis from above, if“Blurred Lines” is found to contain enough original elements, then it can be considered a derivative work and subject to its own copyright protection.

In 2013, recording artist Robin Thicke (featuring T.I. and Pharell) had a mega hit with his recording “Blurred Lines.”  The song spent 16 weeks as the Number 1 R&B/Hip Hop song and 12 weeks at the top of the Billboard Hot 100 Chart.  [2]  It sold more than five million downloads in 22 weeks–the fastest of any song in digital download history. [3]  Having earned millions of dollars by attracting the ears of millions upon millions of viewers, the song eventually caught the ears of the estate of the late great soul singer Marvin Gaye.  Gaye’s estate claimed copyright infringement stating that Thicke used elements of Gaye’s 1977 hit song “Got To Give It Up.”  [4]   Part of the complaint alleged that “Blurred Lines” and “Got To Give It Up” felt or sounded the same.  [5]

The court found that “Blurred Lines” infringed on the copyright of “Got To Give It Up” and awarded the Gaye Estate damages.  So, in the context of our discussion, the court’s ruling suggests that “Blurred Lines” is not a derivative work because it does not contain enough original elements.  The court’s ruling further suggests that “Blurred Lines” is more of a copy of “Got To Give It Up” rather than its own original song.  As we know, this ruling has been extremely controversial and sparked extensive backlash from the music industry.  Music industry professionals have opined that “Blurred Lines” contains only more of the “sound and feel” of “Got To Give It Up” than an actual copy.  Famed musician Nile Rogers commented of the verdict, “”Compositionally, purely compositionally, I don’t think they should have lost that case. ‘Got to Give it Up’ is clearly a blues structure, (‘Blurred Lines’) isn’t at all.”[6]

What do you think?  Listen to both songs here.

“Blurred Lines”  http://vevo.ly/W0OCcA

“Got To Give It Up”  https://youtu.be/kdnyrnLXFhg

Advice from the Hollywood Lawyer

If you are an artist, be as original as possible.  The more of your creativity your work has, the more right you have to claim copyright.  Still, being artists too, we understand the value that inspiration holds.  After all, part of being an artist is being able to inspire another and being inspired by others.  If your work is not “personal” enough, if it has more of someone else’s creativity than it does of yours, it if sounds too similar or looks too similar, then it is questionable.  Still, the original artist is always entitled to credit in derivative (sampled) works.  Remember this at all costs.  Even if it is a derivative work, the original existed first and the original artist has earned this credit for his/her contribution.  Should you seek clearance (permission) before  creating a derivative work (sampling?)  This answer depends on a number of factors–one being the extent that you intend to publish the work; another being how similar your work is to the original work.  See this prior post by The Hollywood Lawyer for a thorough discussion:  Sampling of Music, Part 1 of 3: When Do I Need Permission?   – https://thehollywoodlawyer.com/2014/10/08/sampling-music-part1/

After reading this post, you realize that you will need to seek clearance before you can move forward with your work.  Then you should absolutely do that.  It’s the law, and it’s wise to take the proper steps at the outset rather than face litigation with the celebration.   Yes, we want you to avoid court and being sued (even though we are lawyers!)  So, follow the proper protocol, via this link, to seek clearance.  See Sampling of Music, Part 2 of 3:  https://thehollywoodlawyer.com/2014/10/10/sampling-music-part2/. 

So things are working in your favor and the copyright owner is considering  giving you clearance!  At this point, you’ll want to consider how much you’re willing to pay in sampling clearance licensing fees.  This fee will vary depending a number of factors including the popularity of the artist and song. Again, you’re not alone in this.  See Sampling Music, Part 3 of 3https://thehollywoodlawyer.com/2014/10/13/sampling-music-part3/ for more insight on negotiating sampling clearance licensing fees.

Keep in mind, however, that if the copyright owner or estate declines to grant clearance then the artist is acting well within her/her rights.  Be professional and respect the artist’s decision, as you would want someone to respect yours.   Go create something else.  Go find inspiration elsewhere.  There are so many that will say “yes” and so much information in the public domain, so why risk it?  Even if you think, I’ll make millions so I’ll risk it.” We can’t agree with this or advise you to do this.  The base word of creativity is “create.”  The work is arguably not yours if you have done little to create it.

 

Endnotes

[1].  See Durhan Industries v. Tomy Corporation, 630 F.2d 905 (1980).

[2].   See Emily Miao, Ph.D  and Nicole Grimm.  (Fall 2103.) “The Blurred Lines of What Constitutes Copyright Infringement of Music: Robin Thicke v. Marvin Gaye’s Estate.”  Snippets:  Review of Developments in Intellectual Property Law, volume 11, issue 4.  Retrieved from:  http://www.mbhb.com/files/Publication/15f87936-526f-408e-9f8b-51efa2c288dd/Presentation/PublicationAttachment/cfb0bdd5-b16c-48ee-9f00-5384691a7429/MBHB-Snippets%20Vol-11-Issue-4-102313-FINAL.pdf.

[3].  See Miao and Grimm.

[4].  See Miao and Grimm.

[5].  See Miao and Grimm.

[6].See Sian Watson (2015, March 19)  “Nile Rodgers: ‘Blurred Lines’ Court Verdict ‘Shocking,’”  HuffingtonPost.com.  Retrieved from: http://www.huffingtonpost.com/2015/03/19/nile-rodgers-blurred-lines-court-verdict_n_6902990.html

 

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