Blurred Lines – Jason Meyers

I am a music lover and historian. In the last 10 or so years, I have felt that it seems to be all but impossible to be musically original. There is no tune that any artist can originate that does not seem to sound like a song previously written and/or recorded by another artist. That being said, the verdict in the case against Pharrell Williams, Robin Thicke and T.I. seems to draw a certain controversy to me. I am a business person in the field of investment banking so I am involved in many industries. I also specialize in intellectual property, specifically in patents.

Music and art are somewhat abstract elements when it comes to comparing similarities. Comparing similarities between visual art and music is more subjective compared to the examination of say…a patent for the invention of a printer, for example. Clarification of these abstractions are highly subjective and need to be raised during the litigation of rights to music as illustrated by the performances of Robin Thicke and Pharrell during trial.

When litigating patents, both sides make written disclosures and comparisons which involve the design, engineering and use of the invention as well as an analysis produced by respective counsel that illustrates to the court the specific overlap of the disputed invention. This gives the jury a lot more definitive elements to consider as compared to a live performance during testimony or an audio comparison. There are no graphical illustrations of overlap.

When litigating the similarity of music, the lines are far more blurred. This also raises the element of familiarity of the subject matter for the jurors. Suppose the jury never heard of “Got to Give it Up”. This happens. We are at a point in time where lots of people have never even heard of Marvin Gaye. On the other hand, one or more jurors may love Marvin and are automatically disturbed at the prospect that their artist was copied without attribution. This is far less the case with patent litigation. So how do you pick an unbiased jury for a litigation involving the rights to music?

I have a friend who’s music is very popular. Consequently his music is sampled and reused more than most other artists. He is also one of the most popular producers on the planet BECA– USE his sound is so unique. I have often contemplated what would be considered a highly controversial provision in a production contract where his guitar performance is also involved. Since he has such a distinct sound, the prospect of his retention of the rights to his guitar track on the work that is the subject of the production contract now becomes a matter of significant importance. Should such work become popular and become the subject of the work of a future artist, and such work that contains the likeness of my friend becomes popular, the artist who hired my friend would benefit.

My contemplated provision in my friend’s production contract would cause the artist who hired him to pass through a monetary credit to my friend, in the event that the work of future artists beyond the artist who hires him becomes popular.

At the turn of the 20th century, as the industrial revolution evolved and the construction of commercial real estate proliferated, it became more and more difficult to obtain rights to build. Purchasing a lot next to a building involved a survey to insure that there were no infringements on abutting property.

Today it is a daunting task to even purchase a piece of commercial property with a contemplated plan to alter or expand on it as the rights of abutting owners are often the subject of a hearing or an outright litigation. Should it be that way with music?

My friend’s music has become such that his sound and style have become the subject of the foundation underneath the structure of popular dance music. In other words, on many levels, he invented the mortar that is mixed with the sand that is used in the cement that is used in the construction of all modern architecture.  If he were an industrialist, he would own many patents on his invention and would be entitled to a licensing fee on the make, use and sale of all cement.

In the digital world we live in, it would be easy to “survey” the making of music to such an extent that a clearing house be formed to digitally clear the rights to music made by all artists and to determine, prior to release, what likeness of the work previously exists by uploading the new file and having it compared, track by track.

When a patent for an invention is contemplated, a prior art search is conducted to reveal the preexistence of similar work. In the age of digital tagging and categorizing, wouldn’t it would be easy to conduct a “prior art search” during the music production process so that a digital comparison to prior art is performed?

Consequently, if (when) a popular piece of work emerges as prior art, such tagging of the old and new art could play a role in marketing the work which could lead to a marketing advantage for the new work that fosters its popularity and additionally automates the allocation of appropriate rights to both artists without having to litigate.

Let’s face it, we are at a point in time where it is impossible to erect an artistic structure without encroaching abutting property. Why not devise an infrastructure that digitally clarifies Blurred Lines. If there is a royalty to be paid as the result of the survey, you Got to Give it Up!

Jason Meyers is a venture capitalist based in New York City.