Thinking Out Loud about the Blurred Lines in Current Copyright Law

As a copyright lawyer, my opinion is that the "Blurred Lines" decision should have been overturned on appeal. However, the more recent victory for Ed Sheeran in the "Thinking Out Loud" copyright case probably has the same net effect, and will mute the prospective ramifications of the "Blurred Lines" decision.

The genre or musical style of a song is not specifically protectable under the language of the copyright statute nor the relevant case law. In most cases, the lyrics and the melody are what is at issue, and whether there was copying or substantial similarity between the lyrics or melody of one song and the other. However, that was not the allegation in the "Blurred Lines" case. The essence of the claim was that defendants copied the groove and style of the Marvin Gaye song "Got To Give It Up" when they created "Blurred Lines", and I did not believe that the jury's decision should be upheld on appeal as a matter of copyright law.

In modern popular music it is understandable that current artists are effectively midgets standing on the shoulders of giants in order to reach new heights... and some similarities are bound to appear in the new works so created. However, when it comes to the particulars and technicalities of copyright law, emotions (particularly envy and jealousy) are usually not well-suited to reaching a correct resolution (and that applies to the jury as well as to the many pundit opinions that proliferated after the Blurred Lines decision).

Prior to the Ed Sheeran "Thinking Out Loud" decision, my research indicated that the "Blurred Lines" case was the only copyright infringement lawsuit in which no specific melody or lyrics were alleged to have been copied. The apparent 'that songs reminds me of another song' threshold suggested by the "Blurred Lines" jury decision could potentially have established a new legal standard. If that was the new threshold for copyright infringement, a lot of modern artists as well as 60's British artists (from the Beatles on across the spectrum) could have been in legal trouble. The floodgates for such litigation could have been flung open.

For now, however, it appears Ed Sheeran's "Thinking Out Loud" case will mute the effect of the "Blurred Lines" decision and hold back what could have been a flood of potential lawsuits - at least for now.

Wallace Collins is an entertainment lawyer handling contract negotiation and general copyright and trademark law matters in the music, film, television, book, fine arts and technology areas. He was a songwriter and recording artist for Epic Records before graduating from Fordham Law School. T: (212) 661-3656; wallacecollins@gmail.com; www.wallacecollins.com