Blurred Lines of Musical Copyright Infringement: The “Blurred Lines” Case

Introduction

On March 10, 2015, a federal jury found singers Robin Thicke and Pharrell Williams infringed the copyright of Marvin Gaye’s song “Got to Give It Up.”[1] The jury verdict is the first significant copyright infringement ruling involving songwriting and music since 1994.[2] Almost immediately, criticism of the ruling appeared on the Web and social media, decrying the decision as stifling creativity and limiting singers and songwriters the ability to freely develop their craft.[3] The criticism, however, is somewhat a gut reaction; the actual judgment lies in the rather convoluted nature of copyright legal analysis. The case has ignited a major storm in the music world: when does homage and influence give way to creating a work so substantially similar to another that it constitutes copyright infringement?[4]

Background

Pharrell Williams is a Grammy-winning singer and songwriter, focused on R&B, rap, and pop.[5] Robin Thicke is a pop singer best known for deep R&B vocal skills.[6] “Blurred Lines” was one of the pair’s collaborations, and was the biggest song hit of 2013, with nearly $11 million in revenue and royalties.[7]

Marvin Gaye was a highly influential soul and R&B singer known for bringing sophistication to soul music by incorporating social, political, and personal issues into the music.[8] The estate was represented in the court case by Nona and Frankie Gaye, two of Marvin Gaye’s children.[9] Gaye’s song “Got To Give It Up” was recorded in 1977; Pharrell and Thicke recorded “Blurred Lines” in 2013.[10]

Analysis

In order to prevail in a copyright infringement claim, the plaintiff must show 1) plaintiff was owner of a valid copyright and 2) protected elements of the copyrighted work were copied by the defendant.[11] Assuming proper copyright ownership, copying can be shown by either direct or circumstantial evidence.[12] Proving copyright through circumstantial evidence involves 1) defendant’s access to the copyrighted work, and 2) substantial similarity between the copyrighted work and the infringed work.[13] Finally, the 9^th Circuit applies a two-prong test to determine whether an infringing work is substantially similar to a copyrighted work is highly fact-based and case-specific.[14] First, an objective “extrinsic” test is applied, which is analyzed by the judge relying on expert testimony, primarily musicologists to establish substantial similarity.[15] Second, a subjective “intrinsic” test is analyzed by the jury during trial deliberations.[16]

Access

Demonstrating access is shown by proving defendant had access to plaintiff’s copyrighted work through actual knowledge or reasonable access to plaintiff’s work.[17] Here, Thicke’s own trial testimony and the court record works against their defense.[18] Court statements show that both Pharrell and Thicke in various interviews referenced Gaye during the songwriting process.[19] Pharrell admitted he was “trying to pretend” to be Gaye while writing “Blurred Lines,” while Thicke admitted he suggested to Pharrell “writing something like ‘Got to Give It Up’.”[20] Additionally, Thicke testified he lied in other interviews and various sworn legal documents that he tried claiming credit for writing “Blurred Lines.” [21] In Thicke’s own sworn deposition during discovery he admitted to “being high on Vicodin and alcohol when [he] showed up at the studio” to discuss recording ‘Blurred Lines’.”[22] In short, access was essentially a conceded element of the legal analysis, given to the success of Gaye’s original “Got to Give It Up” and the court record.[23]

Substantial Similarity

Substantial similarity is the second prong for copyright infringement. Each Court of Appeals circuit has its own analysis for determining substantial similarity. The “Blurred Lines” case was filed in federal district court in Los Angeles, or the Central District of California, which lies in the 9^th Circuit Court of Appeals.[24] The 9^th Circuit has an “extrinsic/intrinsic” test, which if fact-intensive and multi-layered with both lay and expert witness testimony.[25] Further, substantial similarity is not required in the event of direct or literal infringement (i.e., whole plagiarism of the copyrighted work).[26] Additionally, the 9^th Circuit’s “Inverse Ratio” rule is analyzed where the higher the defendant’s access to the copyrighted material, the lower the similarity required to show infringement occurred.[27]

Before trial, the judge had already ruled that the sound recording for “Got To Give It Up” could not be heard in court for the legal reasoning that sound recordings were not copyright-protectable material until 1996 – nineteen years after the song was released.[28] As a result, only the lead sheets – the stripped-down instrumental documentation of the sound recordings – could be used in the court proceedings.[29] The side-by-side testimony revealed that there were similarities in the “signature phrase” – the opening lyrics and chorus opener – between the two songs.[30] Specifically, the opening Afro-beat base of A and E chords, and lyrics of “I used to go out to parties” in Gaye’s “Got To Give It Up” and “I’m gon’ take a good girl” in “Blurred Lines” were “stunning” and “highly unusual” in melodies.[31] Further, the melisma – notes, words, or phrases sung over several notes – of “girl” and “dancing” were found similar in both songs.[32] Still further, the so-called “hook” phrases of “Keep on dancin’” in “Got To Give It Up” and “Take a good girl” in “Blurred Lines” return immediately after the bar line, in reference to the timing of the key words of the song.[33] In summary, both songs shared striking similarities that a passing observer would have noticed the infringing copy as being derived from the original version which was ultimately the prevailing reason the jury found Pharrell and Thicke liable for copyright infringement.

Conclusion

The court action which culminated in the jury verdict against Thicke and Pharrell actually started with them when they filed a declaratory judgment action in August 2013.[34] Early on in the litigation, a media defense of Pharrell and Thicke by stating:

Look, technically it’s not plagiarized. It’s not the same chord progression. It’s a feeling. Because there’s a cowbell in it and a Fender Rhodes as the main instrumentation – that still doesn’t make it plagiarized. We all know it’s derivative. That’s how Pharrell works. Everything that Pharrell produces is derivative of another song – but it’s a homage.[35]

However, the defense is, in fact, copyright infringement. Copyright ownership includes rights to create derivative works. Pharrell’s and Thicke’s own argument is undermined when they claim that they did not commit copyright infringement if they initiated an action to seek judicial notice that they did not, in law, commit copyright infringement. By its nature, by filing for declaratory relief, Pharrell and Thicke must have known at some innate level that their actions would be perceived as being unlawful.

This is a very difficult case, and it should be noted that Pharrell and Thicke can appeal directly with the 9^th Circuit. Copyright infringement, and specifically the “substantial similarity” test, with three or four tests spread among the thirteen circuits, needs clarity and simplicity which militates for further Supreme Court intervention.[36]

* Cite as Brent Yonehara, Blurred Lines of Musical Copyright Infringement: the “Blurred Lines” Case, Yonaxis IP Blog, found at http://yonaxis.blogspot.com/2015/03/blurred-lines-of-musical-copyright.html (March 13, 2015).

[1] See Victoria Kim, Randy Lewis and Ryan Faughnder, ‘Blurred Lines’ Ruling Stuns the Music Industry, L.A. Times, found at http://www.latimes.com/local/lanow/la-me-ln-blurred-lines-ruling-roiled-the-music-industry-20150310-story.html (March 11, 2015, 6:00 AM).

[2] See Ben Sisario & Noah Smith, ‘Blurred Lines’ Infringed on Marvin Gaye Copyright, Jury Rules, The New York Times, found at http://www.nytimes.com/2015/03/11/business/media/blurred-lines-infringed-on-marvin-gaye-copyright-jury-rules.html?_r=0 (March 10, 2015).

[3] See, e.g., Randall Roberts, ‘Blurred Lines’ Verdict a Blow to Creative Expression, L.A. Times, found at http://www.latimes.com/entertainment/music/posts/la-et-ms-blurred-lines-verdict-reaction-20150310-column.html (March 10, 2015, 5:50 PM) (criticizing the Blurred Lines verdict by stating “[p]op music is at its base a form of creative theft….”); Rebecca Hawkes, Blurred Lines vs Got to Give it Up: Twitter Reaction, The Telegraph, found at http://www.telegraph.co.uk/culture/music/music-news/11463368/Blurred-Lines-vs-Got-to-Give-it-Up-Twitter-reaction.html (March 11, 2015, 8:41 AM GMT) (cataloging reaction by Twitter users to the verdict, which seemed fairly equal in for and against).

[4] In full disclosure, this author owns copyrights in performing arts and source code.

[5] See Andy Kellman, Biography: Pharrell Williams, All Music, found at http://www.allmusic.com/artist/pharrell-williams-mn0000275757/biography (accessed March 11, 2015).

[6] See Andy Kellman, Biography: Robin Thicke, All Music, found at http://www.allmusic.com/artist/robin-thicke-mn0000238686/biography (accessed March 11, 2015).

[7] See Kim, Lewis & Faughnder, supra note 1.

[8] See Jason Ankeny, Biography: Marvin Gaye, found at http://www.allmusic.com/artist/marvin-gaye-mn0000316834/biography (accessed March 11, 2015).

[9] See Sisario & Smith, supra note 2.

[10] See Austin Siegemund-Broka, How Similar is ‘Blurred Lines’ To A 1977 Marvin Gaye Hit?, The Hollywood Reporter, found at http://www.hollywoodreporter.com/thr-esq/how-similar-is-blurred-lines-778635 (March 3, 2015 5:00 AM PST).

[11] See Emily Miao & Nicole E. Grimm, The Blurred Lines of Copyright Infringement of Music Even Blurrier as the Robin Thicke v. Marvin Gaye’s Estate Lawsuit Continues, MBHD IP Snippets, found at http://www.mbhb.com/pubs/xpqPublicationDetail.aspx?xpST=PubDetail&pub=271#_ftn37 (Winter 2014); Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991).

[12] Straughter v. Raymond, U.S.D.C. Case No. CV 08-2180-CAS, 2011 WL 3651350 at *8 (C.D. Cal. Aug. 19, 2011).

[13] Swirsky v. Carey, 376 F.3d 841, 844 (9^th Cir. 2004).

[14] See Miao & Grimm, supra note 9.

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

[16] Smith v. Jackson, 84 F.3d 1213, 1218 (9^th Cir. 1996).

[17] See Jason v. Fonda, 526 F. Supp. 774, 776 (C.D.Cal. 1981), aff’d, 698 F.2d 966 (9^th Cir. 1982).

[18] See Sisario & Smith, supra note 2.

[19] See Kim, Lewis & Faughnder, supra note 1.

[20] Id.

[21] See August Brown, Robin Thicke on ‘Blurred Lines’: ‘I was high on Vicodin and alcohol’, L.A. Times, found at http://www.latimes.com/entertainment/music/posts/la-et-ms-robin-thicke-blurred-lines-deposition-high-vicodin-alcohol-20140915-story.html (September 15, 2014, 7:19 PM).

[22] Id.

[23] Id.

[24] See Miao & Grimm, supra note 9.

[25] Id.

[26] See Range Road Music, Inc. v. East Coast Foods, Inc., 668 F.3d 1148, 1154 (9^th Circ. 2012).

[27] Straughter, at *13.

[28] See Siegemund-Broka, supra note 10.

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] Id.

[34] See Carrie Battan, Robin Thicke, Pharrell and T.I. Sue Marvin Gaye’s Family and Funkadelic Over “Blurred Lines”, Pitchfork, found at http://pitchfork.com/news/51936-robin-thicke-pharrell-and-ti-sue-marvin-gayes-family-and-funkadelic-over-blurred-lines/ (August 13, 2013, 10:36 AM EDT).

[35] See Anna Silman, Robin Thicke’s “Blurred Lines” Clusterf***: A Very Brief History, Salon, found at http://www.salon.com/2015/02/25/robin_thickes_blurred_lines_clusterf_a_very_brief_history/ (February 25, 2015, 5:24 PM UTC) (quoting Questlove in his defense of Pharrell’s songwriting of “Blurred Lines”).

[36] See, e.g., Amy B. Cohen, Masking Copyright Decisionmaking: The Meaninglessness of Substantial Similarity, 20 U.C. Davis L. Rev. 719, 753 (1987) (criticizing the 9^th Circuit approach to substantial similarity as a flawed attempt to resolve issues with the traditional approach); Sergiu Gherman, Harmony and its Functionality: A Gloss on the Substantial Similarity Test in Music Copyrights, 19 Fordham Intell. Prop. Media & Ent. L.J. 483, 492 (2008) (arguing a new simplistic test of harmonic functionality); Timothy C. Smith, Towards A Consistent Test for Substantial Similarity Regarding Infringement of Copyrighted Aspects of Computer Programs, 22 Golden Gate U. L.R. 431 (1992) (arguing for a new standardized test for substantial similarity, albeit limited to copyrighted computer programs).