By Jeff Aba-Onu

The goal of copyright law in the United States is to promote the progress of the arts and sciences and this can be seen in the language of the Copyright Clause of the U.S. Constitution which empowers the U.S. congress: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

Therefore, copyright law has always tried to strike a balance between protecting an inventor’s right to enjoy the profits of his/her invention and promoting (or at the very least not stifling) creativity. This balance has become more difficult to maintain recently as there has been a push to monetize all assets and create ownership interests in everything. This push was reflected in the creation of Asset Backed Securities (ABS), the most famous of which are Mortgage Backed Securities, and it was the rise in these securities that led to the great recession of 2008.

The push to own everything can be seen in copyright claims from Spike Lee suing Spike TV over the use of “Spike,” and the attempt by Donald Trump to own the words, “You’re fired.” Now there’s a recent jury verdict that finds that Pharrell Williams and Robin Thicke’s song, “Blurred Lines”, has infringed on Marvin Gaye’s song, “Got to Give it Up.” This is a troubling verdict because the two songs sound kinda but not really alike, and this can be said for many songs.

This is not like the famous copyright infringement that occurred when Vanilla Ice song, “Ice Ice Baby,” clearly sampled Queen’s song “Under Pressure.” This is a situation where the two songs share a similar feel or genre and so this jury decision now means that musicians cannot reference other musicians materials, which will make things difficult for musicians as they would now have to come up with songs that are completely different from every other song.

The risk from this verdict, therefore, is that it will stifle creativity which goes against the Commerce Clause of the Constitution, which states that the Congress should “promote the progress of science and useful arts.” The good news is that this case will most likely not create a precedent as it is going to be appealed and hopefully will be overturned. However, the irony of this case is that one can argue that it is a result of the music industry trying to create ownership rights in everything. For example, Taylor Swift now owns the phrase, “we never go out of style”, “nice to meet you, where you been?” and “party like it’s 1989”. Therefore, the music industry will have to decide if they want to continue down the path that states that everything must be owned and so nothing can be done without a license, or whether the industry wants to leave enough room for creativity which is the life blood for musicians.

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