In business disputes, negotiation doesn’t mean backing down

Two recent copyright cases from the music industry highlight the benefits of negotiating rather than litigating.

By on / Negotiation Skills

Imagine that you’re an up-and-coming singer who has suddenly scored the pop hit of the year. You should be on top of the world, but rumors have been flying that you and your cowriters lifted your melody from a much older song. You know you did nothing wrong—certainly not intentionally—and are frustrated by the implication that you ripped someone off. At the same time, you’re worried that the other side may be able to make a strong case based on similarities between the songs if they decide to sue you for copyright infringement. A significant amount of money and your reputation are potentially at stake. What should you do, if anything?

Not one but two pop stars faced this dilemma over the past couple of years. Upon the release of his 2013 hit “Blurred Lines,” singer Robin Thicke faced criticisms that the song sounded too much like Marvin Gaye’s 1977 song “Got to Give It Up,” which Thicke himself had cited as an inspiration. And last year, many couldn’t help but notice that the melody of British crooner Sam Smith’s breakout debut single, “Stay with Me,” tracked closely with that of the 1989 Tom Petty hit “I Won’t Back Down.”
From the start, the two singers chose to handle the potential disputes in very different ways. One chose litigation and ended up losing a lengthy and public court battle. The other chose negotiation and settled the dispute quickly, quietly, and amicably. The singers’ early-stage choices dramatically affected how the disputes unfolded, offering key lessons to business negotiators who are trying to decide whether to negotiate or litigate.

When musical lines blur

In March 2013, soon after releasing “Blurred Lines,” Robin Thicke told GQ magazine that, while recording his new album with singer-songwriter Pharrell Williams and rapper T.I., he had wanted to write a song with the same groove as Gaye’s “Got to Give It Up,” one of his favorite songs. “Then [Williams] started playing a little something and we literally wrote the song in about a half hour and recorded it,” Thicke said.

Thanks to its infectious groove and risqué video, “Blurred Lines” went on to become one of the best-selling singles of all time. But Thicke’s camp apparently became worried that their overt homage to Gaye could prompt the late R&B singer’s family to try to share in their success. So Thicke, Williams, and T.I. made a bold move: They preemptively sued Gaye’s family for a declaratory judgment that “Blurred Lines” did not infringe on the family’s copyright. Gaye’s family countersued, accusing the songwriters of copying the sound and feel of “Got to Give It Up.”

During the federal trial in Los Angeles, musicologists working for each side tried to guide the jury in its comparison of the sheet music of the two songs. To the jury, the Gaye family’s lawyers emphasized Thicke’s and Williams’s shifting accounts of their collaboration. Thicke, for example, testified that because he had been high on drugs and alcohol during the recording process, he actually had little to do with writing “Blurred Lines” and later, jealous of Williams, had exaggerated his own contribution. On March 10, 2015, the jury ruled against Thicke and Williams (but not T.I.), granting Gaye’s family $7.3 million, one of the largest damages awards ever in a music copyright case and about two-thirds of the estimated $11 million Thicke and Williams have made from “Blurred Lines.”

No hard feelings

Compare this public battle to Tom Petty’s resolution of a similar dispute with Sam Smith last year. “Stay with Me,” the first release from Smith’s debut album, became an instant hit in mid-2014, eventually selling about four million copies and winning two Grammy Awards in 2015.

Soon after the song became popular, the publishers of Tom Petty and Jeff Lynne’s cowritten song “I Won’t Back Down” contacted the publishers of “Stay with Me” and pointed out that the melodies of the two songs are virtually identical, the Wall Street Journal reports. By October, the two sides had reached an agreement: Petty and Lynne received a 12.5% writing credit on “Stay with Me” and commensurate royalties.

When news of the deal leaked this past January, both sides were quick to frame the situation as a negotiation, not a dispute. Smith’s representative said in a statement that the writers of “Stay with Me” had not been familiar with “I Won’t Back Down” but acknowledged the similarity between the two songs, calling it “a complete coincidence.”

Smith’s camp “didn’t try to fight [the claim] and amicably dished out royalties,” a source close to the negotiation told the website Consequence of Sound. “It wasn’t a deliberate thing; musicians are just inspired by other artists and Sam and his team were quick to hold up their hand when it was officially flagged.” According to the source, negotiations were conducted “behind closed doors without any mud being slung.”

For his part, Petty said in a statement that he “never had any hard feelings” toward Smith. “All my years of songwriting have shown me these things can happen. …  Sam’s people were very understanding of our predicament and we easily came to an agreement.” He added, “The word lawsuit was never even said and was never my intention.”

First, negotiate

For most disputes, a clear-eyed calculation of legal fees and the risks of losing in court should motivate parties to try to negotiate a settlement rather than immediately taking it to trial, write Robert H. Mnookin, Scott R. Peppet, and Andrew S. Tulumello in their book Beyond Winning: Negotiating to Create Value in Deals and Disputes (Harvard University Press, 2000). By pursuing negotiation first, you position yourself to save time and money, avoid stress, and increase the odds of keeping the details of your dispute private. If agreement proves elusive, litigation remains an option.

But even when we aspire to resolve disputes as peacefully and fairly as Petty and Smith appear to have, we can end up in the type of expensive and risky litigation that unfolded between Thicke and Gaye’s family. Here are three notes from the two cases that can help you negotiate a satisfying resolution to your next significant business dispute.

1. Hire lawyers who will negotiate.

Disputants often turn over too much decision-making power to their attorneys, assuming that the experts know best, according to Mnookin, Peppet, and Tulumello. But it’s important to remember that your lawyer’s interests will never be perfectly aligned with yours. Lawyers often have clear financial incentives to take a dispute to trial, especially if they are being paid by the hour and expect a long fight. In addition, lawyers may be more comfortable taking an adversarial role in the courtroom than they would be negotiating.

Look for a lawyer who will present the range of strategies available to you, including negotiation, mediation, and litigation. If your lawyer tries to talk you out of negotiation or seems only to be humoring your desire to try it, seek new counsel.
You can also increase the odds that your lawyer will get on board with negotiation by adjusting her financial incentives. You might offer her a bonus for negotiating a settlement quickly, for example, or warn that you will replace her if the dispute endures beyond a certain date.

 

Did a clear villain overshadow a weak case?

Though many observers viewed Robin Thicke and Pharrell Williams as the villains in their case against Marvin Gaye’s family, numerous legal experts criticized the ruling against them. The recordings of “Blurred Lines” and “Got to Give It Up” have an undeniably similar sound, including their use of male falsetto and cowbell. But because Gaye copyrighted only his song’s sheet music and not its recording, “sound” and “feel” weren’t supposed to be considered in the trial. Some experts judged the two songs’ sheet music to be no more similar than any other two songs. Arguing that the judge should have thrown out the case, Columbia Law School professor Tim Wu wrote in the New Yorker that Gaye’s lawyers won not because they had the facts on their side but because they did a good job of contrasting the “widely revered” Gaye with the “enormously unappealing” Thicke to the jury. Despite their efforts to be impartial, judges and juries can be just as biased as the rest of us—but the stakes of their binding decisions are much higher. All the more reason, then, to negotiate rather than litigate.

 

 

2. Approach the dispute as a negotiation.

In dispute resolution, how parties frame their disagreement at the outset can have a significant influence on how it unfolds. According to Petty, for example, his team never even mentioned the word lawsuit when approaching Smith’s publishers about possible copyright infringement. Instead, the Petty team appeared to assume that Smith and his cowriters had no ill intent, an attitude that encouraged a problem-solving approach.

The Thicke-Williams team’s strategy couldn’t have been more different. Rather than engaging the Gaye family in a dialogue, the masterminds behind “Blurred Lines” preemptively sued them instead. Not only did this decision become a public-relations disaster but also may have played poorly to the judge and jury. In a Billboard article written after the verdict was announced, Gaye family lawyer Richard Busch called Thicke and Williams “bullies” for filing the suit and speculated that their goal had been to intimidate the Gayes into backing down. “I bet they now regret it,” Busch added.

When you feel wronged or unjustly accused, it can be tempting to approach the dispute with a combative win-lose attitude. Instead, take the high road: Assume the best about the other side, and open up a sincere conversation about what happened and how you can work together to correct it. Your counterpart may be surprised by your collaborative overtures, but she will be far more likely to cooperate on a mutually beneficial solution than if you open with a lawsuit.

 

3. Draw on appropriate fairness standards.

Petty and Smith may have reached a quick agreement in part because the case for copyright infringement was cut-and-dried. The melodies of Smith’s and Petty-Lynne’s songs track note by note, whereas the Thicke-Williams song is arguably more of a loose homage to Gaye.

The clearer the facts, it stands to reason, the easier a dispute should be to resolve. That’s why it pays to approach negotiations only after you’ve conducted significant research into the relative strength of your case. You or your legal team should investigate relevant standards, past precedent, and common practices in your industry. If, after educating yourself, you are still considering litigation, assign your lawyer to use decision-analysis tools such as decision trees and dependency diagrams to quantify the risks and opportunities of going to court, advise Mnookin, Peppet, and Tulumello in Beyond Winning.

At the table, remember that people view “facts” differently depending on their perspective. Rather than assuming that the other party will agree to the fairness standards you’ve chosen, discuss the various rules and perspectives that are available and decide jointly which to apply to your case.

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