“Blurred Lines” Means Changing Focus: Juries Composed of Musical Artists Should Decide Music Copyright Infringement Cases, Not Lay Juries

Jason Palmer · 18 Vand. J. Ent. & Tech. 4

Abstract

The verdict in Williams v. Bridgeport Music, Inc., or the “Blurred Lines” case, surprised a lot of people. It surprised the public, as many did not expect there to be infringement. It also surprised the litigants, because the jury’s special verdict form contained a logical inconsistency indicating that something had been decided incorrectly. However, the jury cannot be faulted for this inconsistency because it was tasked with deciphering the indecipherable. The fault lies in the way copyright law establishes infringement. This Note investigates the apparent circuit split in determining music copyright infringement and proposes that it is illusory. All circuits are attempting to do the same thing while using different language. The “different” tests used by each circuit all suffer from the same flaws: lack of a definition for “musical idea” and “musical expression” and the inability to pinpoint how “substantial” substantial similarity is. Given the complicated nature of music, tinkering with the tests or establishing definitions is futile. The change should focus on the trier of fact who applies the test. Juries composed of musicians should decide whether there is infringement in music copyright cases by balancing the interest of the plaintiff artist in owning the allegedly protected expression and the interest of the music community as a whole in using and building upon the allegedly protected expression. This process will ensure that music copyright’s goal of benefitting the public is pursued with the most deliberate of intentions.