17 March 2015

Blurred Yellow Lines in the Snow

Or, the Law of Unintended Consequences of Law

So, in yet another example of the simultaneous over- and under-inclusive reach of copyright law, the eminently forgettable "Blurred Lines" has been found by a jury to infringe the copyright in a Marvin Gaye song (that passed into near-oblivion before most of Mr Thicke's and Mr Williams' listeners were born). There are a lot of problems with the verdict, beginning with the fact that it's far from final — it's not even the judgment of the trial court, as motions for judgment as a matter of law (formerly called "judgment notwithstanding the verdict," and that's what it's called in the half-dozen or so most-relevant historical decisions in similar postures) aren't even due yet! These motions essentially say "Hey, Judge, you heard all the evidence, too, and you gotta agree with us that no rational juristy could have come to that verdict, so throw it out already." The fun would truly be complete if handled by the notorious R.B.G. — perhaps in an opinion of trochaic rhymes, like so much other (c)rap.

What the hell? This is a jury's verdict on music. Why bring in bad classificational memes from the philological study of poetry, memes that ignore substance in favor of form and try to force interpretation to fit the form? Next thing we know, you'll be citing arrogant, ideologically driven high-falutin' literary theory from the seventies in an effort to make us think the entire proceeding was a farce.


This entire case is a more-subtle-than-it-seems demonstration that process and product are two different things, especially in the arts, and that measures that are intended to encourage or regulate one of the two seldom do so predictably in the other. In short, what we have here is failure to ruminate.

Thread the First: Copyright doesn't care about process. Really. There are a few outlier matters out there that claim to look at drafts of final works in order to determine infringement; however, the real dispute in almost all of those cases is not truly a copyright dispute, but an authorship and/or compensation dispute that has been shoehorned into copyright due to copyright's procedural advantages (federal court, readily available injunctions, possible recovery of attorney's fees, and so on). The ill-founded Cariou opinion from the Second Circuit is an excellent (and somewhat less emotionally charged) example. Not once in that case do the judges (no jury, it was decided on summary judgment and not-quite-entirely reversed on appeal) express anything about artistic process that is not an inference of pure mechanics. This is the equivalent of describing Picasso's Guernica solely in terms of brush-stroke technique.

But this may be necessary, as both a matter of law and a matter of reality. Judges (and lawyers more generally) are poor judges of the arts, as Justice Holmes recognized over a century ago in Bleistein. Further, due to the peculiar worship-of-the-past nature of legal writing — after all, the best way to win a legal argument is to demonstrate that someone has said exactly the same thing before in the most-closely-analogous circumstances possible — judges and lawyers are inherently ill-suited to evaluate "influence," and particularly to determine how much "influence" is too much.

Thread the Second: The arts — especially music, especially commercial music, and extra-especially collaborative efforts in commercial music — are at least as much about process as they are about product. Indeed, in this particular instance the process of creating "Blurred Lines" is probably far more important than the song itself... if not entirely in accord with the mythology of the inspired artist creating something from nothing. I can count on the fingers of one finger the number of federal judges with substantial, long-term exposure to the entire process of creating music (even interpretive efforts like turning a nineteenth-century orchestral score into a concert performance) prior to having their minds forever warped by law school; there are three times that many among legal academics, but one is no longer involved with law teaching. I don't think things are even that generous for either the visual arts or film or substantial works of fiction (that is, more than a few very short stories in mimeographed/photocopied student "literary magazines").

But this may be necessary, as both a matter of law and a matter of reality. Just think for a moment: As an evidentiary matter, are we going to require an honest, verifiable, contemporaneous record of how every work in the arts is created, just so we can later determine influences if there's a later dispute? Worse, doesn't that assume both that all influence is conscious and that all such records are, umm, honest (e.g., Cariou, as noted above)? And, more to the point, doesn't this problem overtly — and overly — reify "the Arts are Special" into an excuse for a wide variety of commercially cynical unfair competition?

Thread the Third: Release the huskies and make some yellow lines in the snow (and my choice of that link is with multiple layers of malice aforethought). The real problem with the "Blurred Lines" jury verdict is precisely that: It is a mere jury verdict. It has no reasoning or explanation. It cannot be used to predict what will happen in the next dispute... except that defense attorneys will desperately attempt to get into a different district with a different jury pool! Dammit, there's a reason that even the most-extreme vision of the common law does not defer to jury verdicts in explaining what the law is. That, however, is precisely what almost everyone who is commenting on this unreviewed verdict is doing.

But this may be necessary, as both a matter of law and a matter of reality. It assumes that whatever juridical gloss might be put on this verdict is superior in right to the verdict itself: There's no more guarantee than there is in neoabsurdist drama, or perhaps something a bit older. Conversely, the verdict is no more (and no less) than a single experimental run performed by untrained students... which is not, of itself, sufficient to either confirm or challenge a theory, all self-interested bloviation to the contrary.

The entire dispute demonstrates that the combination of hurt feelings, commercial pie-slicing, and disparate views of what qualifies as a copy and what qualifies as an homage make for the byproduct of huskies in the snow: Blurred, yellow, ephemeral lines that will be obliterated by the following sled and completely obscured by the next snowfall.