The Blurred Line With Intellectual Property Rights in Music: Do We Need Copyright Law Reform?

Copyright law and intellectual property rights can be some ambiguous territory because of the more abstract nature of intellectual property. This idea played out with the recent ruling that Robin Thicke's 2013 song, Blurred Lines, was a copyright violation of a Marvin Gaye song called Got to Give It Up. When listening to the two songs, there are certain similarities, such as tempo, cowbell, and the falsetto. Regardless of how one feels about Robin Thicke as an artist, we still have to ask ourselves whether the ruling was proper or whether the court system has gone too far in the other direction.

First, let's define copyright. Copyright is a legal right that grants the owner of immaterial property, such as music, the exclusive rights of its usage, sale, and distribution. In United States law, the call for such protection exists under Article I, Section 8, Clause 8 under the Constitution. The reason why copyright laws exist in the first place is because those who making their living off of such abstract, immaterial goods and services need a way to make a living. Otherwise, there is a disincentive for such individuals to produce artistic work, especially since developing technology makes it easier to copy innovations than in the past. A world without creative and intellectual work would be a deprived world, and we should make sure that we have a system that fosters such work. However, I do worry not only because the problem could be overstated because derivative work is an imperfect substitute or because of the rent-seeking that creates inefficiencies and unintended consequences (e.g., Buccafusco and Heald, 2012).

The Marvin Gaye ruling is problematic because it was not even based on plagiarizing lyrics or melodies. It was passed because the two songs had a similar feel. If having certain elements from previously recorded songs or using other musicians is now a crime, I would hate to see what this will do to the music industry. What worries me the most is that it will open the floodgates of litigation for anyone who feels like suing another musician simply because their latest hit sounds like that of another artist. Much like I had explained with software patents a few months ago, there is a legitimate worry that a competitive market might be stifled if well-off individuals or entities can threaten upcoming stars with litigation.

How does one protect intellectual property rights without discouraging new works? Decreasing the length of copyright terms, encouraging added-value industries by relaxing copyright laws, creating clearer and more comprehensive language in the laws surrounding Fair Use and copyright law in general, punishing those who make false copyright claims, allowing for the usage of orphan works, implementing private ordering, creating centralized databases to reduce transaction costs, and updating the tort reform to reduce statutory fines and the incentive to induce litigious behavior in society can be good places to start. Whatever reform takes place after this ruling, I hope it's in favor of a flourishing marketplace.