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Blurring the Lines of Blurred Lines

The Ninth Circuit recently heard arguments in the "Blurred Lines" litigation. From the arguments, it seems that the judges are inclined to uphold the verdict, or possibly expand the victory by the Gaye heirs.

For the practicing attorney advising businesses on a day-to-day basis, the emphasis of the Blurred Lines case should be on how broad copyright laws extend. Things like "inspired by" or "kind of like" become evidence of copying, used by rights holders to demand take down and payment.

Is it fair? I love debating the scope of IP law and how our society has warped the original intent of promoting original work into an e-ticket for a creator and the creator's progeny. But we as lawyers provide practical advice, so whether it is fair or not is irrelevant.

Also, whether an employee copies someone else's work is irrelevent. What is relevant is whether a judge and jury can be convinced that a work was copied. So, along with providing guidance not to copy other people's works, you should advise your clients not to use language, in writing or otherwise, that indicates that a copyrightable work is based on the work of another. Thus; refrain from instructing your marketing people that you want a campaign "...like StarWars." Or that telling people that the new logo was "inspired by the work of Koontz."

Copyright trolls already exist; and will only get worse as rights expand. Try to be proactive. And don't provide "blow up" (e.g., it gets blown up on a poster to be put in front of a jury) material.

Ultimately, the Blurred Line case is a further example of the unexpected land mines that exist in IP law. A little bit of proactive advice; as well as training clients to run things by you; can save your client a lot of grief.