Are Musicians Full of it? The Metaphorical and Figurative Power of Subconscious Copying in Copyright Infringement Cases

Abstract

Subconscious copying is copyright infringement. In this paper, however, we argue that claims of subconscious copying in copyright infringement cases have significance beyond legal doctrine. Using the recent United States District Court decision involving Pharrell Williams and Robin Thicke’s worldwide hit Blurred Lines as a starting point, we argue that subconscious copying claims have a metaphorical and figurative value that has various dimensions. In this way, claims of subconscious copying draw attention to the creativity, brilliance and genius of musicians. They reinforce the ethereal nature of music creation. They also portray music creation as a burden and a sacrifice, and that only a select few are capable of drawing on their subconscious to create and share music. Perhaps, then, evoking subconscious copying allows musicians to mitigate the harm to their reputation and seek dignity and self-respect; even when they are liable for copyright infringement.