“Perhaps it’s finally time for the recording industry to just admit that it went too far in pushing for everything to be covered by copyright and that everything must be licensed.”

Mike Masnick

Artists not only have to worry about protecting their own copyrights, there is also the possibility that someone will come after them for allegedly copying their music. It doesn’t happen often, but it happens enough that some observers are concerned about the effect that judgments of copyright infringement will have on the creative industries.

In this commentary from Techdirt, Mike Masnick responds to the recent jury decision that Katy Perry’s song “Dark Horse” infringed Flame’s “Joyful Noise”. Masnick claims that although there might be similarities in the song, there are some beats and grooves so basic to music creation that they cannot be “owned” by one artist or company. Put another way, these beats and grooves are ideas that can be expressed in very limited ways. When an artist or company is successful in protecting their claimed copyright in one of these fundamental elements of music, the law has essentially given them ownership of the underlying idea. According to Masick (and many other copyright commentators), this creates a “chilling effect” for creators, especially when they have openly acknowledged their influences.

An example of this is the “Blurred Lines” case, in which Pharrell and Robin Thicke were accused of copying Marvin Gaye’s “Got to Give it Up”. A jury found in favor of the plaintiffs, Gaye’s children. The decision and award of damages was widely criticized. Musicologist and Berklee professor E. Michael Harrington called the decision “just crazy.” The verdict was upheld on appeal. While Pharrell and Thicke admitted to trying to replicate the groove and feel of the original song (and of Marvin Gaye and 1970s R&B in general), they denied copying any specific elements.

From the comments section of Masnick’s article, it looks like Techdirt readers agree with his assessment that the recording industry is shooting itself in the foot in trying to expand what copyright can or should cover.