April 4, 2018
On March 21, the Court of Appeals for the Ninth Circuit upheld a jury verdict that found that Robin Thicke’s and Pharrell Williams’s “Blurred Lines,” the number one song in the world in 2013, infringed the copyright in Marvin Gaye’s 1977 song “Got to Give It Up.” Although the Ninth Circuit made its decision on narrow grounds, the decision, along with the lower court jury findings, has caused much concern in the music industry as to the precedent it may create, as many believe that “Blurred Lines” merely copied the musical style of “Got to Give it Up,” rather than the melody, harmony, and/or rhythm of the song.
Background to the Litigation
Robin Thicke and Pharrell Williams wrote “Blurred Lines” in 2012, which became the best selling song in the world the following year. Clifford “T.I.” Harris, Jr. contributed rap verse for the song after it was composed. “Blurred Lines” caused some controversy separate and apart from copyright issues in the litigation, because it was alleged by many to be misogynistic and demeaning to women. Specifically, the song’s music video featured naked and scantily clad women (in two different versions) running around fully clothed men. The song also repeatedly used the lyrics, “I know you want it,” as sung by Thicke. Thicke initially made comments that appeared to admit the song was degrading to women; however, he later claimed his remarks were taken out of context and further stated that the lyrics were about his wife, who after 10 years of marriage he knew “wanted it.” Incidentally, a few months after he made those remarks, his wife filed for divorce.
As to the copyright controversy, Marvin Gaye’s heirs (the “Gaye Heirs”) initially tried to impede sales of the song after Thicke indicated in interviews in 2013 that he intended to emulate the style of Marvin Gaye in “Blurred Lines.” In one interview Thicke told GQ Magazine, “Pharrell and I were in the studio, and I told him that one of my favorite songs of all time was Marvin Gaye’s ‘Got to Give It Up’. I was like, ‘Damn, we should make something like that, something with that groove.’ Then he started playing a little something and we literally wrote the song in about a half-hour and recorded it. The whole thing was done in a couple hours.” Instead of negotiating with the Gaye Heirs in response to their cease and desist letter, on August 15, 2013, Thicke and Williams filed a lawsuit seeking a declaration from a federal district court in California that their song did not infringe “Got to Give it Up.” The Gaye Heirs counterclaimed, alleging that “Blurred Lines” did infringe the copyright in Marvin Gaye’s song. During the litigation that followed, Thicke testified that he was high on drugs and drunk during the GQ Magazine interview as well as every other interview he gave that year. (That testimony may have had some impact on the jury’s verdict against him.)
The Evidence for and against Copyright Infringement
In order for there to be copyright infringement, the Gaye Heirs had to show that they owned the copyright in “Got to Give it Up,” and that there was either infringement by direct evidence of copying the song’s protected elements or that there was both (a) access to the copyrighted work and (b) substantial similarity between the two works. In the Ninth Circuit substantial similarity requires meeting an extrinsic and an intrinsic test. The extrinsic test involves the identification of concrete elements based on objective criteria, usually requiring experts to dissect the songs. The intrinsic test is subjective and focuses on whether an ordinary and reasonable person would find the overall concept and feel of the songs to be substantially similar.
The litigation focused on comparing “Blurred Lines” to the written “deposit copy” of the “Got to Give It Up” sheet music provided to the United States Copyright Office, rather than the sound recording of it. At the time “Got to Give It Up” was written, federal copyright law did not protect sound recordings. Thus, the jury was never allowed to hear the full recording of “Got to Give It Up.” While this theoretically limited the comparative elements of the songs for the jury to consider, it was still provided with evidence by experts concerning aspects of “Got to Give It Up” that went beyond the deposit sheet music and were contained instead in the sound recording of the song. The Gaye Heirs used an expert to try to show that when one takes together all of the aspects that are similar between the two songs, there exists a “constellation of similarity” between them. The Gaye Heirs’ expert argued that similarity was represented by the comparable function and melodies of the signature vocal phrase, including the repetition in each song of starting tones, identical scale degree sequences and rhythms for the first six tones, and using the same melodic tail at the end of the last lyric. The Gaye Heirs’ expert also claimed that there was overlap between the song hooks (i.e. the most memorable melodic material in the songs), bass melodies, keyboard parts, and the unusual cowbell percussion choices.
In contrast, Thicke’s and Williams’s expert broke down every note and chord to try to show the jury that the songs do have different melodies, rhythms, harmonies, song structures, and lyrics. Their expert argued that no two consecutive notes in “Blurred Lines” have the same pitch, duration, or placement as any in “Got to Give It Up,” and no chord progressions were copied. Their expert also claimed that other aspects of the songs that appeared to overlap were not in the relevant “deposit copy” of “Got to Give It Up,” rather only in the full sound recording, and that they were unprotected, not copyrightable ideas, like repeating notes in a different way or using a cowbell. Thicke’s and Williams’ expert indicated that these ideas were music building blocks of numerous prior musical works.
Here are limited sample portions from both songs so you can evaluate any similarities yourself:
“Blurred Lines” Sample Cut
“Got to Give It Up” Sample Cut
The District Court’s Findings
After trial the jury found there to be infringement and awarded damages, which were revised by the judge to total $3,188,527.50 in actual damages, profits of $1,768,191.88 against Thicke and $357,630.96 against Williams and the song’s publishing representative, as well as a running royalty of 50% of future songwriter and publishing revenues received by Williams, Thicke, and Harris. Not only did the rulings entitle the Gaye Heirs to obtain these monetary rewards, but also following the trial, Marvin Gaye’s own song sales skyrocketed by more than 200%.
The Ninth Circuit’s Ruling on Appeal
The losing parties appealed the litigation, and on appeal the Ninth Circuit upheld the jury verdict in a 2 to 1 vote and found no warrant for retrial. Among other things, the Ninth Circuit held that the jury instructions and expert testimonials were properly admitted by the district court judge, the damages and profits were properly awarded by the district court, and the denial of granting attorney’s fees to the Gaye Heirs was appropriate. However, the Ninth Circuit also found that the lower court judge was wrong in overturning the jury’s finding that Harris was not liable for copyright infringement.
The Ninth Circuit’s opinion tries to alleviate the fears of those who claim that the case results will limit musical inspirations in creating new musical works. The Ninth Circuit stated that the appeal was decided “on narrow grounds” and that the “decision does not give license to copyright a musical style or ‘groove.’” The Ninth Circuit held that its decision hinged upon procedural law that limited the nature of review with respect to the lower court’s findings. In conclusion the court stated that “[f]ar from heralding the end of musical creativity as we know it, our decision even construed broadly, reads more accurately as a cautionary tale for future trial counsel wishing to maximize their odds of success.”
What Effect Will the Case Have On the Music Industry?
Although the Ninth Circuit emphasized that its opinion was a narrow one and limited in review by procedure, it does raise the question of what effect the case will have on musicians paying homage to or using the musical style of another artist as a direct influence for a new work. At the very least the case should instruct composers to consider the potential consequences of speaking publicly about how they sought to create a work based on the style or influence of another composer. Perhaps it will also cause composers to preemptively seek more voluntary permissions to use another artist’s musical influence in creating new works. The case also suggests that an alleged copyright-infringing composer might be more willing to negotiate with an accusing composer before heading to court to seek a declaration of no infringement.
The case results definitely leave open the question of where the line is to be drawn for a finding of music copyright infringement. There is no question that all music is somewhat derivative of music that came beforehand. But can one now show infringement of one song by another merely by demonstrating that one artist copied another artist’s feel, style or genre without extracting any of the melody, harmony, or rhythm? After this case, the lines remain blurred.
The case is Williams et al. v. Gaye et al., case number 15-56880, in the U.S. Court of Appeals for the Ninth Circuit.
This article is intended only as a general discussion of these issues. It is not considered to be legal advice or relied upon. For more information, please contact RPJ Associate Ethan Krasnoo, who counsels clients on copyright, trademark, entertainment and media, First Amendment, data privacy, and employment (including discrimination, sexual harassment, and contractual), matters. Mr. Krasnoo is admitted to practice in New York State, the U.S. District Courts for the Southern and Eastern Districts of New York, the U.S. Court of Appeals for the Second Circuit, and U.S. Tax Court. Attorney Advertising.