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Musicians File Brief in Blurred Lines Case, Supporting Limits to Copyright

· August 31, 2016

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Yesterday several hundred musicians filed an amicus brief with the Ninth Circuit in support of plaintiff-appellants Pharrell Williams, Robin Thicke, and T.I. in the Blurred Lines appeal, Williams et al. v. Gaye et al.  (They were initially plaintiffs because they had filed a declaratory judgment, as I explained in this post.)

This brief was noteworthy, in that it’s an important—and somewhat rare—example of rightsholder constituencies pointing out the costs of overbroad rights.  While scholars say this frequently, it is not as commonly heard from artists.  (Prof. Peter Jaszi has often said that with intellectual property, sometimes “you can have too much of a good thing.” [1] [2] [3])  On Twitter, Brandon Butler characterized the filing as saying “everything is a remix,” alluding to an ongoing video series from Kirby Ferguson about creativity, originality, and copyright.  As the brief put it:

From time immemorial, every songwriter, composer, and musician has been inspired by music that came before him or her. . . . Virtually no music can be said to be 100% new and original.

The filing is also reminiscent of Judge Kozinski’s famous dissent in White v. Samsung, also in the Ninth Circuit:

Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s supposed to nurture. . . . All creators draw in part on the work of those who came before, referring to it, building on it, poking fun at it; we call this creativity, not piracy.

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