Mediation in the Music Industry:
By Katherine Mutchler
The music industry seems inevitably bound to have problems regarding ownership disputes, visual and audible similarities, and art origination due to the fact that people simply make copyright mistakes, coincidences occur, and artists may take inspiration from one another. With catchy tunes and melodies surrounding peoples’ everyday lives, it proves inevitable that cases of copyright will become apparent, and disputes often wind up in professional mediation. The music industry includes many overlapping connections and a sense of pride in creativity and ownership, so making an enemy of another musician through a lawsuit often results in long lasting implications on an artist’s career. Mediation demonstrates effective problem solving in this niche concept of music, because it serves as an ideal process in reaching collaborative solutions when settling disputes among musicians who connect to their music so personally. Emotional attachments run high to what these artists create, and acceptable resolutions may never be recognized in a productive manner or thoroughly in litigation. With many benefits to the process, the music industry has improved since commonly implementing the practice of mediation and rejecting the formal process of legal arbitration. There are real world examples that have been discussed in the news, and artists that have spoken up about these experiences. This process is the best in this particular industry, because it saves money, saves time, and saves emotional drainage that can then be put into creating more beautiful sounds for fans to rejoice over. Mediation is a positive, progreesive, and protecting process in the music industry. However, it is inaccurate to determine whether mediation should always be used in disputes regarding music and its artists for the sake of the law. Three real world examples prove this point, because of the varying motivations, diverse problems, and close relationships that are buried deep within this niche industry.
In a modern case, famous pop star Ariana Grande and iconic Atlanta-based rapper, 2 Chainz, settled a copyright case on their own with the avoidance of litigation and the helpfulness of mediation techniques. Whether there was true resentment or not in the beginning, the case settled joyfully and brought two different artists together in order to fix a minor dispute. This case began on June 16th 2017 when 2 Chainz released his album Pretty Girls Like Trap Music. This was a huge production for the rapper’s fourth studio album that was accompanied by some of the hip-hop industry’s biggest and most successful artists, pop-up shops in the United State’s largest cities, and even a nationwide tour. One critic described the album as, “Despite the lack of range, Pretty Girls Like Trap Music goes down as 2 Chainz’ strongest LP to date and will become a reference point for anyone curious about how the towering rap star can service their turn-up needs.” (https://www.albumoftheyear.org/album/69671-2-chainz-pretty-girls-like-trap-music.php) Controversy began to rise when Grande released her highly anticipated music video for “7 Rings” on January 19th, 2019. Critics were eager to speak up about some of the similarities that Grande had implemented, but one in particular was the graffiti paint that said “7 Rings” in black atop of a monochrome pink house, similar to the album cover of Pretty Girls Like Trap Music. The camera zoomed into this image as an R&B beat accompanies. Along with the similarities in album artwork, Grande also appeared to mimic 2 Chainz’ music video through the use of a similar aesthetic that would later catch the attention of the rap star. Author Alyssa Bass went further to say “Critical Race Theory helped explain tweets that said Grande has the privilege to use cultural elements, i.e. music styles, slang, and aesthetics, without being scrutinized like a black woman traditionally would.” (Bass). In some time following this release, 2 Chainz spoke about this similarity when he was interviewed by music editorial and lyrical library, Genius. In his comments, on the controversy to interviewer Rob Markman, the rapper said, “I want to say it didn’t bother me, but once again, you don’t want to get caught up into that, man, you’re petty…But in this particular case, I’ve known her manager for a very long time…and I guess it was a lot of slack actually coming on their end as well, not just from me.” (https://www.youtube.com/watch?v=XlC6fSl1LRE) Clearly, there were plenty of emotions involved and by 2 Chainz showing his feelings in this case, it displays that a case of this significance would not receive the same individualistic attention and human connection that it would in litigation compared to mediation. The rapper said that he had a conversation with Grande, in person, in order to understand where each artist was coming from emotionally. The rapper described that this had changed how he initially felt about the problem, because he was able to grasp the reality of the situation; He said “I think that kind of changed everything, because I started getting what was going on…She was more or less saying that ‘Well yeah, I thought people knew I took it from you.” The rapper then said, “Well, how would people know that?” 2 Chainz went further to say that he had no idea that Grande was a fan of his. After the emotions were displayed by the two artists, they were able to work together as a team in order to build a rapport. An unlikely friendship began to grow and ultimately ended in popular new music for millions of fans and consumers to enjoy. 2 Chainz said from the meeting “She opened up her mouth and an angel came out and I was like ‘Yo this little girl can sing”. 2 Chainz later joined Grande in the remix of her song “7 Rings” which has over 12 million plays on Spotify. Grande then had a feature in the rappers album Rap or go to League. The most iconic collaboration of the duo would be “Rule the World,” which has over 24 million views on their joined music video on YouTube. 2 Chainz said, “She [Grande] just was super excited about trying to put it out, clear space or whatever…We shot a dope video…So, it’s crazy how stuff works out.” This case avoided what could have been a very expensive court case. With the power of mediation, money was saved, feelings honored and recognized, and public image and face maintained. This mediation, of sorts, was established and executed in a joint session. A use of caucus would have been detrimental in a case like this, because having the two powerful, successful, and talented artists speaking directly to one another aided in their trust building, their transparency, and honesty. Each of the parties, both 2 Chainz and Grande, were respectful to one another and were never negatively abreast to one another’s art and entertainment. This process encouraged production, unity, and a result of paying financially to a point that every person involved gained from collaboration. Not one person was guilty nor innocent, there was not one plaintiff nor defendant, insults were not passed along, and time was used productively. The parties were in control of the end decision, and the ethics remained to human standard. True confidentiality was never broken, and the only facts about this situation were only expressed by the artists themselves.
Another modern case of dispute in the music industry revolved around country music sensation turned global pop icon Taylor Swift. Now thirty-two years old, Swift, showed frustration regarding the sale of the record company “Big Machine Records,” which was the company responsible for recording, releasing and distributing the singer’s first six studio albums, and accounted for Swift’s entire discography. In 2019, reports surfaced that American media mogul Scooter Braun had purchased “Big Machine Records” from the company’s founder Scott Borchetta for around $300 million dollars, which included the rights to Swifts master recordings, music videos and album artwork/design. Swift alleged that prior to the sale of “Big Machine Records,” owner Scott Borchetta refused to engage in serious requests by Swift regarding her purchasing of the master’s, claiming that he only offered unfavorable conditions. Borchetta dismissed Swift’s claims and said that she had never reached out to him or “Big Machine Records” regarding the recordings masters. To add to Swift’s frustration, Braun recently sold “Big Machine Records” (including Swift’s discography) to “Shamrock Holdings,” an investment firm tied to the Disney Company for around the same price he purchased it for, with the stipulation that he continued to receive royalties from all future sales. The consecutive sales of “Big Machine Records” in such a short time span seemed to augment Swift’s frustration, anger and her feeling of mistreatment. With bold emotions expressed publicly by Swift, a use of mediation at this point would have been a smart action to implement. In response, Swift announced in 2021 that she would be re-recording her first six studio albums under a new artist-friendly record deal with Republic Records, a subsidiary label of the Universal Music Group. The new deal allowed Swift to compensate for loss revenue, regain artistic control over her music and create new opportunities for herself in the aftermath of the Big Machine Records sale. University California Los Angeles School of Law Professor Susan H Hilderley said this was ‘nothing out of the ordinary’ to Swift not owning her masters.” As to date, Swift has re-released two of the records, Fearless and Red, both in 2021, which have been marketed to consumers as “Taylor’s Version.” Based on the sales numbers, both physically and electronically, along with the statistics from popular web-based, subscription music streaming platforms, such as Spotify and Apple Music, Swift’s marketing of the albums as “Taylor’s Version” seems to have effectively driven a wedge between Swift and “Big Machine Records” in the court of public opinion. It appears as if the general consensus amongst Swift’s loyal fans is that “Big Machine Records,” “Shamrock Holdings,” Borchetta and Braun are unscrupulous, unfair and ruthless businessmen/companies. This case would never progress in litigation, and mediation would not be a viable solution after the recordings, because contracts were previously signed, nothing illegal or morally wrong had occurred, and all parties must have been ready and willing to participate in mediated discussions. The art of mediation is fully reliant on the fact that everyone must be eager, emotionally invested, and curious in finding a solution. If one necessary person wishes not to participate, then there is no object, fund, nor personale relation to negotiate. Mediation is voluntary, meaning it could last a long time, it could end abruptly, or, like in this case, could never happen. Cases like this are necessary when educating those studying to be mediators, because this discussion can never be forced, even when masses of fans, powerful business associates, and passionate insiders may be encouraging the mediation. Ethically, a mediator must conduct a quality process, using the star method or Riskin’s Grid, and if one of the parties is refusing to budge, then the conversation can come to a screeching halt.
The next case is a large-scale case that could have been settled both in mediation and arbitration. The case involves three parties and is called the Marvin Gaye Estate v. Robin Thicke and Parrell Williams case. This is a case that could have utilized both of these processes, with mediation working in some parts to save money, emotions, and time, while litigation working on more complicated matters such as the estate of Marvin Gaye and the subjective audible resemblance. The case covers the controversial similarities between the songs “Blurred Lines” and “Got to Give it Up”. Pharrell Williams was the proprietor and writer of the song with the aid of Robin Thicke. It would later be Williams that filed the case to make the point that it was not infringement of copyright on Marvin Gaye’s song. Once Gaye’s estate had heard of this filing they called for negotiations. Gaye’s estate presented a dollar amount which they believed appropriate for the alleged infringement at the time. Thicke and Williams denied this amount and it was then carried up to copyright court. The failure in negotiations would ultimately be the most damaging aspect to the whole case and to the artists. Had Williams and Thicke settled in negotiations with the aid of a mediator, then money would have been saved, opportunities would not have been lost, and a positive relationship could have been established among artists and their family. For Williams, this severing of a relationship between himself and the Gaye family is a huge loss due to already similar musical styles, the shared black soul music cultural backgrounds, and the fact that his reputation was diminishing due to another current law dispute with himself and other popular R&B artist Will.I.Am. In copyright cases, such as this, there is constant possibility that a case may be settled outside of court, even while the case is still occuring. In the end, the case would ultimately land in favor of Marvin Gaye’s estate, held by his children at the time, with the estate awarded 7.3 million dollars. This verdict not only had financial implication, but also brought into question the artistic ability, integrity and competence of Thicke and Williams. The masses, reporters, and critics all laid out their opinions on this case through social media and publishing mediums; The publicity is another weighing factor that is accounted for in litigation. Author Toni Lester wrote “the law should be the floor not the ceiling , in terms of motivating people to do right by others” (Lester). The concept of privacy is one that the parties of Williams and Thicke had to overlook when they rejected the offers from the Gaye estate in the initial negotiations.
In cases regarding music and copyright, there are benefits for settling disputes in mediation and there are benefits of settling in arbitration, but they are quite different from one another. Of these three examples, the practice of mediation is deemed to be the most profitable, most rejoiceful, and most positive outcome. It is difficult to say that the music industry should stick to one or the other, but the cases that settle in negotiation have the least long-lasting effects. The case of Grande and 2 Chainz made sense to settle in mediation because it was based off of similarities between a music video and an album cover. In the case of Swift and Big Machine Records, mediation could have been used to a degree, but it would prove to be unproductive because one party refused to participate. In the case of Thicke, Williams, and Gaye, litigation was used because the audible similarities weighed too far of a burden to be judged outside of a courtroom and included the complications of an estate’s involvement. Mediation is a proven tool to use when it comes to human and strong emotions. Mediation removes impersonal factors that often come along with cases in court. Music is a highly celebrated concept, so when it gets to court, many people feel the emotional toll. Mediators unite people in a common ground and know how to get all parties on the same level, no matter the differences in financial standings, cultural backgrounds, genders, religions, race, family standings, occupation, etc. Having three very different musical cases also alludes to the individualistic matters of each of the cases and how this is commonly overlooked in a courtroom. Having a single, well trained mediator increases the likelihood of a case being heard intentionally, actively, and willingly. The act of mediation alone is enough to speak volumes of a case because it is entirely voluntary, it is far more private than arbitration, and it saves a lot to be lost in the costly and timely characteristics of a traditional lawsuit. For all of these artists and individuals in these cases, one can assume that none of these mistakes and wrong-doings were on purpose. These cases are public and are the ones that students continue to learn from. This should be appreciated because there are many more cases that will never be mentioned due to the confidential rules that are used in practice of conducting a mediation.
Works Cited
Bass, Alyssa T. "‘I want it, I got it’: Cultural appropriation, white privilege, and power in Ariana
Grande’s “7." (2020).
Lester, Toni. "Blurred Lines-Where Copyright Ends and Cultural Appropriation Begins-The
Case of Robin Thicke versus Bridgeport Music and the Estate of Marvin Gaye." Hastings
Comm. & Ent. LJ 36 (2013): 217.
“Marvin Gaye Estate vs Robin Thicke and ...” Lost In Music, www.lostinmusic.org/cases/detail/15-marvin-gaye-estate-vs-robin-thicke-and-phar.
williams v. gaye: blurring the lines ofhttps://lawcat.berkeley.edu › 07_Parhami_WEB
YouTube, YouTube, https://www.youtube.com/?gl=ES.
https://www.youtube.com/watch?v=XlC6fSl1LRE
“2 Chainz Explains How He Cleared The Air With Ariana Grande Over The ‘7 Rings’
Controversy.” Genius,
genius.com/a/2-chainz-explains-how-he-cleared-the-air-with-ariana-grande-over-the-7-rings-controversy.
https://www.newuniversity.org/2021/04/12/what-taylor-swifts-re-recordings-symbolize-fo