So I’m sure by now you have heard all about this Robyn Thicke, Pharrell Williams, Clifford “TI” Harris, (Thicke) Marvin Gaye Estate (Gaye) legal fiasco. But just in case you’ve been living under a rock for the past year and a half, I’ll bring you up to speed.
Basically, Marvin Gaye’s kids contacted Robin Thicke about copying Marvin Gaye’s hit song “Got to Have It” in Thicke’s song “Blurred Lines”. The Gaye’s contacted Thicke demanding monetary compensation and threatening litigation if none was provided. The parties couldn’t agree on a settlement, so in August 2013, Thicke, along with Pharrell and Clifford “TI” Harris (co-writers of the song), went on the preemptive and filed a Declaratory Judgment alleging that Blurred Lines did not copy any of Gaye’s song. Thicke admitted to copying elements that were reminiscent of a particular era in order to evoke a certain sound and feel.
A Declaratory Judgment is a lawsuit requesting a judge to determine whether an actionable claim is present prior to a lawsuit actually being filed. Here, Thicke was asking the court to tell the Gaye’s they have no legal claim and to not waste their time trying to sue them for copyright infringement. In return, the Gaye family counters with copyright infringement of not only “Got to Have It”, but also “After the Dance” for Thicke’s song “Love After War”.
In the interest of time, I’ll only focus on the Blurred Lines cause of action, because the issues addressed were essentially the same for them both. The Gaye’s alleged that Thicke copied protectable elements of Marvin Gaye’s song, so much so, that anybody listening to the song can tell the similarities. The Gaye’s also sued EMI (who happens to be the publisher for both parties), for breach of contract, breach of fiduciary duties, and breach of covenant of good faith and fair dealing, but I won’t get into all that. They mainly alleged that EMI failed to protect their interests and EMI also interfered with their pursuit of filing legal claims against Thicke. At any rate, the infringement case went to trial and a jury found Thicke guilty and awarded almost $7.4 million in damages (including statutory damages), making that the highest amount awarded for a copyright infringement claim in history.
Ok, that’s just a short and sweet synopsis. The case is actually quite complex and involves the musical analysis of four different songs in order to determine which elements are protectable by copyright law versus those that are commonplace and somewhat necessary to convey a certain message. And then, an analysis must be conducted to determine which of these elements that are commonplace and copied, are copied enough to be “substantially similar” to the copyrighted work.
In order for a plaintiff to succeed on a copyright infringement claim, he must show possession of a valid copyright and, copying of protected elements of a copyrighted work. Copying is shown by access to the copyrighted work and a substantial similarity between the allegedly infringing work and the copyrighted work. Access is shown directly where the defendant had reasonable opportunity to hear the work, which can be demonstrated by widespread dissemination of the work. California also employs the Inverse Ratio Rule indicating that the more access the defendant had, the less it has to be “substantially similar” to the copyrighted work.
Here, Gayes had a valid copyright. Access was shown directly because “Got to Have It” was a very popular Marvin Gaye song and Marvin Gaye was an extremely famous singer. In addition, Thicke always boasts about being a Marvin Gaye fan. Just about everybody’s heard the song. You don’t have to be a musician, a Mavin Gaye fan or even a music lover. You’ve heard this song. You might not know it, but you have. Watch.
Now, copyright does not protect ideas, it only protects expressions of those ideas. That means if you come up with song lyrics in your head and you never write them down, you don’t have a copyright. You have an idea. So, here the court found that there were eight elements (which were unexpressed) that are generally un-copyrightable, but combined together, it made the works substantially similar.
This decision is a slippery slope. It blurs the lines of the idea versus expression dichotomy on which the foundation of copyright law stands. By finding infringement that is essentially based on a sound or a feel avoids the inherent requirement of copyrightablity, which is to be a tangible expression of an idea. Music writers and producers must walk a fine line in creating music that resonates with a particular genre now.
On the contrary, the songs do kind of sound alike. And I’ve heard other songs that have substantially similar “feels”, but neither “sound” or “feel” were written into the Copyright Act as a protectable work or determined to be an expression in and of itself. Only time will tell how big an effect this decision will have on future music creators.
Listen to the songs via the YouTube videos below. You decide if the jurors had it right.
Marvin Gaye “Got to Give It Up” https://www.youtube.com/watch?v=fp7Q1OAzITM
Robyn Thick “Blurred Lines” https://www.youtube.com/watch?v=yyDUC1LUXSU
Lerae Funderburg, Esq. is the Managing Attorney at Funderburg Law, LLC, an Atlanta based entertainment law firm. Lerae has almost 10 years of experience in entertainment law in both music law and film law. As an entertainment lawyer and blogger, Lerae keeps her viewers and subscribers up to date with entertainment law news, especially in the areas of music, copyright law and trademark law. If you are local to Atlanta, call and set up a consultation! She would love to hear from you!