When Robin Thicke’s “Blurred Lines” first came out in early 2013, few likely predicted the hit’s future inescapability. But absolutely no one could have imagined that the song’s legal battle would have an effect on musical copyright for years to come. The 2015 case, in which a jury found Thicke and co-writer Pharrell liable of copying Marvin Gaye’s “Got to Give It Up” and a judge ordered them to pay more than $5.3 million to Gaye’s relatives, raised concerns that lawsuits over “vibe” or “feel” would become more common than those based on tangible similarities between two pieces of music. And now those fears are carrying over into the remixing community.
A professional remix contract typically includes a number of stipulations; sometimes that includes a promise that the remix doesn’t include any unauthorized samples. But a new remix contract from one major label requires remixers to go even further, asking them to disavow inspiration from any other recording. Along with standard legal disclaimers, language from this contract—provided to Pitchfork by a prominent producer under condition of anonymity, citing business considerations—required the remixer to agree that their track would not include any “material which is ‘inspired by another person’s work.’” A separate sheet—where the remixer ordinarily has to check off whether samples were used and if so, at what precise times—now also includes the phrase “elements inspired from any third party recordings.”
Though “inspired by” clauses don’t appear to be the norm for the remix world just yet, some in the industry say they’ve encountered them already. “I’ve only heard of majors using them,” says Caius Pawson, founder of Young Turks and A&R director for XL Recordings. “We haven’t used them, but given the risk of litigation post-‘Blurred Lines,’ I’m not surprised that they’re doing this.” Kompakt label manager Jon Berry tells Pitchfork he recalls the “inspired by” language having come up once in his remix contract dealings, too.
Music attorneys contacted by Pitchfork hadn’t seen such stipulations in remix contracts to date, but they, too, were unsurprised. “This is obviously in response to the ‘Blurred Lines’ decision,” says lawyer Owen Sloane, who has previously testified as an expert witness in disputes involving remix contracts. “I would never recommend any artist agreeing to this and I think the artistic community should rebel against any such language.”
To a layperson, it’s obviously impossible not to be “inspired by” other artists’ work. Luckily, the courts have traditionally taken a similar view. “Inspiration has never been part of copyright law, for good reason,” says Charlie Anderson, a lawyer whose client roster includes Daft Punk and Seth Troxler. “Now labels feel compelled, understandably, to ‘cover their ass’ in this way, just in case.”
Matt Pincus, founder and CEO of SONGS Music Publishing, whose clients include Lorde, the Weeknd, and Diplo, said his company would strike the language if it came up in a remix agreement. “Because what are they talking about?” he explains. “It’s not a bright red line, because it’s not hard information.” Unlike a list of samples that a producer might have to provide with a remix, “inspired by” is nebulous.
Unfortunately, not all producers have the leverage to fight back against contractual language. “Unless you’re a major star, then you just sort of have to swallow hard,” acknowledges Jose Sariego, a lawyer who teaches a class called Media and Entertainment Law in the Digital Age at the University of Miami Law School. The lack of clarity about what type of musical borrowing courts will allow trickles down to artists.
And artists, predictably, are finding the idea of remix contracts with “inspired by” clauses pretty preposterous. “That’s bonkers!” says Imogen Heap, who in addition to her own music (and work for others, including the likes of Taylor Swift) is also the CEO of Featured Artists Coalition, a UK group advocating for musicians’ rights. “What we need is much simpler terms for existing music rights and licenses, should someone wish to copy, sample, or openly be inspired by,” she adds. Heap contends that most artists would give permission to a new track inspired by their own work as long as they’re credited.
Michael Mayer, a producer whose remix work spans from Depeche Mode to Pet Shop Boys, calls the contract language “absurd” since reference points are a necessity for creators. “Club music is a recycling culture,” he says. “Every groove has a genetic footprint that is being passed on from generation to generation. You can draw a direct line from R&B, funk, disco, house, and techno to even the current EDM mutations.”
From a legal perspective, these “inspired by” clauses are noteworthy in at least one other way. Lawyers representing artists accused of infringing copyright will often argue that, if found liable, their case would have what’s called a “chilling effect” on creativity. The added contract language “is the most concrete evidence of a chilling effect from a copyright infringement case that I have ever seen,” says music lawyer Mattias Eng, whose firm represented Thicke and Pharrell in the “Blurred Lines” case. “Usually people sort of eyeroll… This is the only time that I’ve seen what looks to be legitimate evidence that someone in the music industry saw the ‘Blurred Lines’ decision and said, ‘This type of previously permissible creativity we are no longer to accept because of legal uncertainties in the music landscape.’”
Sure enough, any spillover effect on remixers from the “Blurred Lines” case, which remains under appeal, is just a small part of a much bigger debate. It’s one that’s also being litigated in an ongoing copyright lawsuit over “Uptown Funk.” But more than that, amid so many courtroom disagreements, is the current system for managing intellectual property in the music industry actually working?
Marea Stamper, aka DJ/producer the Black Madonna, believes not. “The entire concept of how we protect intellectual property is a broken system that ultimately harms both the rights holders of artistic works and the people influenced by artistic works,” she says. “It should be easier, not harder, to sample. It should be easier, not harder, to derive influence and give credit and compensation where it’s due … There should be a simple way to acknowledge a sample or inspiration from another work and a small statutory fee that people would willingly comply with.”
If not, we may reach a point where artists are even afraid to acknowledge inspiration. Talk about a chilling effect.
