What The Music Biz Fears Most
Ed Sheerhan's victory could vanquish the curse of "Blurred Lines."
May the fourth might be known by most internet citizens (and my 5-year-old) as Star Wars Day. But for songwriters, the fourth day of the fifth month might henceforth be known as the day that the curse of “Blurred Lines” finally lifted and musicians were once again free to be inspired by other music in the same way creativity has functioned since the dawn of recorded media. For it was on this day in 2023 that the ironically Hobbit-esq Ed Sheeran defeated the Gollum-ish Marvin Gaye Estate in its attempt to protect its precious copyright in a lawsuit claiming infringement between the latter’s “Let’s Get It On” and the formers “Thinking Out Loud.”
This case, the highest-profile jury decision since the Gaye Estate won $5M in damages from “Blurred Lines” creators Robin Thicke and Pharrell Williams in 2018, marks what could be the end of songwriters self-censoring (and publishers proactively paying) when a song shares stylistic similarities to other well-known works.
The chilling effect of the “Blurred Lines” decision on creativity has been discussed repeatedly in this newsletter. And we can be sure that this is not the last legal case that will wrestle with inspiration-vs-infringement. In the half-decade since “Blurred Lines,” major artists from Katy Perry to Led Zeppelin defended their work in similar cases. But those victories came on appeal after juries first issued guilty verdicts. Sheeran’s case marks the first time in recent memory that a jury sided with the defendant, which should go a long way in reducing the fear of litigation that has stifled the industry for half a decade.
And that got us thinking about fear as a factor that drives many of the decisions in today’s music industry — occasionally for better, but often for worse. The challenge in writing about fear is that we generally don’t know what things people don’t do because of fear. Unless they speak out as songwriters have, fear is generally a silent (de)motivator. So instead of looking for fear where we might not find any, we thought about places where an overt lack of fear has led to industry-moving results.
It was a lack of fear on the part of the public that first gave us online music via file sharing, despite attempts by the RIAA to sow fear by suing individuals for huge sums of money.
The industry made its own fearless bet by
colludingpartnering with Spotify in its early days to share ownership of the platform while at the same time negotiating with itself to set royalty rates. Without those initial deals, we wouldn’t have streaming today.Media properties like Boiler Room and Mixmag fearlessly used the safe harbor protections of YouTube to build a global audience for DJ content and sell it to brands like Ballentines and Smirnoff without paying traditional performance licenses.
Today, we see the rise of AI music that was fearlessly trained on copyrighted material with little apparent concern for compensating the artists whose music it hooved into its training data.
Of course, there is a fine line between fearlessly pushing the envelope and blatantly disregarding the law. A federal judge just ordered mixtape site Spinrilla to pay the majors $50M for illegally distributing music on the site. The founder, Jeffrey Copeland, is also banned from operating the site or anything like it, in the future. A warning to those who might be tempted to toss caution into the wind when it comes to copyright infringement.
But the winners in the digital music ecosystem have largely been those who asked forgiveness rather than seek permission.
TAKEAWAYS
Salient statements from this week’s music news.
1. The Boomy/Spotify Streaming Fraud Debacle Proves ‘Pro-Rata’ Must Go
It’s been revealed that the AI-generated music wasn’t removed because it was “fake,” but because the same company was also artificially inflating streaming numbers.
Takeaway: Soon enough, it threatens to grow fat off an uncontrollable prospect: millions of AI tracks, played millions of times by AI bots, every day.
2. Record Store Day 2023 Gives Indie Stores Biggest Boost in 15 Years
Indie labels might fret that RSD backs up vinyl production. But it supports essential indie stores.
Takeaway: RSD 2023 also drove a modern-era record of 1.426 million vinyl albums sold in the U.S. at independent record stores April 21-27. That is the largest week ever for the format at the indie sector in Luminate history since the company began tracking sales in 1991.
3. Some Vintage Synths Increasing in Value Faster Than Stock Market
As if gearheads needed more justification.
Takeaway: Some second-hand audio equipment has jumped in price more than 500 percent over the past seven years, according to a new guide published by online marketplace Reverb. This is more than four times the growth of the S&P 500 and other major stock markets over the same period.
