The highly publicized lawsuit involving Robin Thicke, Pharrell Williams, Clifford Harris. Jr. (“T.I.”), and their hit song “Blurred Lines,” demonstrates the rare example of a case going to trial, and the costly risk of letting a jury decide copyright infringement. While more notorious ways of infringement generally include sampling, lifting, or copying lyrics or notes, today, music artists may still be found liable if an audience perceives that their music feels too similar to an older song’s groove. A telling example occurred on March 10, 2015, where a federal jury found Thicke and Williams liable to Marvin Gaye’s family for over $7 million as a result of “Blurred Lines” (2013) being substantially similar to Gaye’s hit “Got to Give It Up” (1977). Though this case is far from over, as reports indicate Williams and Thicke intend to appeal the decision, this case provides a clear demonstration of the blurred lines—pun intended—between copying another’s work and being influenced or inspired by it. This article walks the reader through pertinent parts of the U.S. Copyright Act and its analysis as applied in the “Blurred Lines” summary judgment and trial proceedings.

Briefly, today under the 1976 Copyright Act, music receives two forms of federal copyright protection. One form of copyright is given to the musical composition, protecting the lyrics and the written music,[1] while the second is given to the sound recordings, protecting the exact fixation of a series of musical, and spoken or other sounds in the recording of the work (i.e. the master recording).[2] While not often an issue arising in today’s music, but was relevant to “Got to Give It Up,” works created before 1978 are governed by the 1909 Act; and under that Act, copyright protection did not extend to the act of recording.[3] That means that “in order to claim copyright in a musical work under the 1909 Act, the work had to be reduced to sheet music or other manuscript form.”[4]

In turning to the “Blurred Lines” dispute, the pertinent facts are as follows: In 1976, Marvin Gaye recorded the song “Got to Give It Up;” but in 1977, Gaye registered the musical composition with the Copyright Office[5] by depositing sheet music representing the lyrics and some of the melodic, harmonic, and rhythmic features appearing in the recorded work.[6] The sound recording was released in 1977 and went on to reach number one on the U.S. Billboard Hot 100 charts. Following his death, Gaye’s estate became the copyright owners to the musical composition. Then, on March 26, 2013, Williams, Thicke, and T.I. (the “Plaintiffs”)[7] released “Blurred Lines,” which sold over six million digital copies.[8] Although both songs feature a cowbell and electric piano, the vocal melodies and lyrics are very obviously different from one another.[9] However, Thicke repetitively stated in interviews that “Got to Give It Up” was one of his “favorite songs of all time,” and that he wanted to “make something like that, something with that groove.”[10] But once litigation commenced, Thicke denied being influenced by Gaye and further denied being present when Williams composed “Blurred Lines.[11]

The “Blurred Lines” summary judgment dispute centered on the scope and originality of the copyright owned by Gaye’s estate, and the extent, if any, of copying by the Plaintiffs.[12] As such, under copyright law, to establish a claim for infringement, Gaye’s family needed to establish: (1) they owned a valid copyright in the work alleged to have been infringed, and (2) the infringing party copied protected elements of that work.[13] When proof of direct copying is not available, a work may be considered copied if the two works are found to be substantially similar.[14] Courts use a two-part test to determine substantial similarity, i.e., the objective extrinsic test and subjective intrinsic test.[15] First, and appropriate at the summary judgment stage, the extrinsic test requires the judge to analytically dissect the work into its elements and filter out the unprotected elements and must thereby find substantial similarities between the works’ protected elements. “To the extent a plaintiff’s work is unprotected or unprotectable under copyright, the scope of the copyright must be limited” prior to conducting this analysis.”[16] Thus, expert testimony is critical for each party when arguing the scope of their respective copyright and when arguing the amount of copying of each protected element. In the “Blurred Lines” case, the court concluded that the lead sheets defined the scope of Defendants’ copyrighted compositions and not any of the sound recordings.

When a court finds substantial similarity under the first part of the analysis, summary judgment is denied leaving the intrinsic analysis for a jury. Accordingly, on October 30, 2014, the California district court denied Plaintiffs’ Motion for Summary Judgment,[17] finding extrinsic similarities between the protectable expressions despite the Plaintiffs’ assertions that those alleged similarities constituted “scenes a faire;” that is, the elements were “commonplace and generic building blocks of musical compositions.”[18] Also, because each party’s musicologist disagreed between the songs’ similarities and dissimilarities, the court considered this as further indicia of a material dispute of fact for a jury to decide.[19] In turning to the second step of the analysis for substantial similarity, the question is whether an “ordinary, reasonable person would find the total concept and feel of the [two works] to be substantially similar.”[20] And on March 10, 2015, a California jury concluded Thicke and Williams infringed on “Got to Give It Up,” albeit not willfully, and they awarded Gaye’s estate $7,388,012 in damages.[21]

This outcome is somewhat shocking, however, given that the admissible evidence should have remained limited to the scope of sheet music rather than any evidence relative to the sound recordings. Indeed, the legal community responded audibly, with one entertainment attorney opining, “[t]he attorney for Thicke, Williams, and T.I. was spot-on during the trial’s opening argument when he said ‘no one owns a genre or a style or a groove.’” While Thicke admitted to being influenced by Gaye’s work and by drugs and alcohol, another music attorney went on to state, “it’s a sad day indeed when being influenced by an artist is considered copyright infringement . . . . There’s also a good chance the jury was biased against the losing side because Thicke testified that he had been drunk and high while recording ‘Blurred Lines.’ This is not the basis for a decision on copyright infringement.”[22] Finally, the following statement further suggests the line between inspiration and coping has become cautiously vague: “the jury blurred the lines between protectable elements of the musical composition and what is unprotectable, which is a musical style or genre, the groove exemplified by Marvin Gaye.”[23]

In any event, the “Blurred Lines” outcome seems to fall neatly within prior precedent, as illustrated in the famous Bright Tunes Music v. Harrisongs Music (1976) case. There, Bright Tunes Music argued “My Sweet Lord” composed by former Beatles member George Harrison infringed on “He’s So Fine” inasmuch as it was the same song but with different words.[24]  Although Harrison argued he had no intent to copy, and to which the court agreed it was subconscious, the court still held that Harrison infringed on the plaintiff’s song because “his subconscious knew [the music] already had worked in a song his conscious mind did not remember.”[25] Consequently, music artists must play close attention and properly screen their work as this case demonstrates the risks of using another song’s groove and the potential risks of trial rather than an out-of-court settlement. As the “Blurred Lines” verdict depicts, despite obvious differences in the vocal melodies and lyrics, settling rather than trial should not go overlooked when arrogant and inconsistent testimony from the artist exists. The outcome of this case may be far from over, and interested readers should stay tuned to upcoming Ninth Circuit decisions.

Justin Maya

[1] 17 U.S.C. § 102(a) (1976); see John Schietinger, Note and Comment, Bridgeport Music, Inc. v. Dimension Films: How the Sixth Circuit Missed a Beat on Digital Music Sampling, 55 DePaul L. Rev. 209, 216 (2005).

[2] See 17 U.S.C. § 106 (1976).

[3] Dolman v. Agee, 157 F.3d 708, 712 n.1 (9th Cir. 1998).

[4] Williams v. Bridgeport Music, Inc., No. LA CV13-06004 JAK, 2014 WL 7877773, at *9 (C.D. Cal. Oct. 30, 2014); see M. Nimmer & D. Nimmer, 1 Nimmer on Copyright § 4.05[B][4] at 2–55.

[5] Under the 1909 Act, to receive copyright protection the copyright owner must do one of the following: (1) publishing the work with the proper notices; or (2) composing, but not publishing the work, and making the necessary deposit with the Copyright Office. Williams, 2014 WL 7877773, at *8.

[6] Williams, 2014 WL 7877773, at *2.

[7] On August 15, 2013, Plaintiffs sought a declaratory judgment that Blurred Lines did not infringe on the copyright in Got to Give It Up or otherwise violate Defendants’ rights. Williams, 2014 WL 7877773, at *1.

[8] Williams, 2014 WL 7877773, at *2.

[9] Joe Bennett, Did Robin Thicke steal ‘Blurred Lines’ from Marvin Gaye?, Joe Bennett (Feb. 1, 2014), http://joebennett.net/2014/02/01/did-robin-thicke-steal-a-song-from-marvin-gaye/.

[10] Williams, 2014 WL 7877773, at *11.

[11] Id.

[12] Williams v. Bridgeport Music, Inc., No. LA CV13-06004 JAK, 2014 WL 7877773, at *5 (C.D. Cal. Oct. 30, 2014).

[13] Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1472 (9th Cir. 1992).

[14] The amount of access to the pre-existing work provides for an inverse correlation for the necessary amount to proof similarity needed between the two works. In other words, the greater the amount of access (i.e. if the work is well-known) the lessor of a showing of similar elements is needed to satisfy this test, and vice versa.

[15] Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir. 2004) (emphasis added).

[16] Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1476 (9th Cir. 1992) (quotations omitted).

[17] Williams, 2014 WL 7877773, at *1.

[18] The court found similarities within an “11–note signature phrase, four-note hook, four-bar bass line, 16–bar harmonic structure and four-note vocal melody,” Williams v. Bridgeport Music, Inc., No. LA CV13-06004 JAK, 2014 WL 7877773, at *19 (C.D. Cal. Oct. 30, 2014). “Commonplace expressions within a genre, which are called “scenes a faire,” are not protected by copyright because the “expressions are indispensable and naturally associated with the treatment of a given idea.” Id. (citation omitted).

[19] Id.

[20] Three Boys Music Corp. v. Bolton, 212 F.3d 477, 485 (9th Cir. 2000) (quotations omitted).

[21] Williams v. Bridgeport Music Inc., 2015 WL 1476803 (C.D. Cal. Mar. 10, 2015).

[22] Harley Brown, ‘Blurred Lines’ Verdict: Music Lawyers Weigh In, Billboard.com (Mar. 11, 2015), http://www.billboard.com/articles/news/6495167/blurred-lines-verdict-music-lawyers-react.

[23] Id.

[24] Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177, 178-79 (S.D.N.Y. 1976).

[25] Id. at 180-81.