A landmark and high profile music copyright case in the US has been lost on appeal with the 9th Circuit Court of Appeals affirming a District Court finding that Robin Thicke and Pharrell Williams infringed the copyright in Marvin Gaye’s Got To Give It Up with their hit song Blurred Lines.
This case reconsiders our understanding of what can constitute copyright infringement. Ordinarily you must prove that essential elements such as melody or lyrics were copied however what was proven to have been copied in this case was more of a “vibe” (or what some have loosely termed a “genre”) owing to similar rhythmic patterns and certain production choices including voices murmuring in the background.
The court awarded significant damages, co-writing credits, 50% entitlement of all royalties to Blurred Lines and additionally found that rapper T.I. is not personally liable.
The case is important for its consideration of:
- The fundamental legal concept that you cannot copyright an idea, only the expression of an idea; and
- The standards for drawing the line between permissible inspiration and unlawful copying.
This outcome shifts the goalposts creating some uncertainty and will have wide impacts across the music industry.
- Recorded 2012
- Released 26 March 2013
- Songwriter credits: Robin Thicke, Pharrell Williams, Clifford Harris Jr., Marvin Gaye
- Success: One of the best selling singles of all time. Reached no. 1 in 80 countries, set the all-time record for reaching the largest US radio audience and nominated for two Grammys (2014).
Got To Give It Up (1977) by Marvin Gaye
- Recorded December 1976
- Released 15 March 1977
- Songwriter credits: Marvin Gaye
- Success: Reached No. 1 on the US Billboard (1977) and worldwide success.
Compilation comparing the two:
(Important: note that this case was decided only on the sheet music and not the sound recordings)
To succeed in a claim for copyright infringement you need to prove the following elements:
- Ownership of a valid copyright – Gaye’s sheet music was deposited with the US Copyright Office. Interestingly the trial judge decided that the copyright did not extend to the sound recording of Gaye’s song as sound recordings at the time were not covered under the Copyright Act of 1909 until legislative amendments in the mid 1970s.
- Access – there was clear evidence that Williams and Thicke had access to Gaye’s song following numerous interviews and admissions that they not only knew it but loved it and had intention to replicate the feel to it. As was found in George Harrison’s case (alleging that he plagiarised his song My Sweet Lord from He’s So Fine composed by Ronald Mack and performed by The Chiffons), you may also be able to ‘subconsciously’ copy so there does not necessarily need to be intent so long as there has been access. Regardless, in this case there were both.
- Substantial similarity between the two songs – they don’t need to be identical and there are conflicting interpretations of what constitutes substantial similarity. Unfortunately there is no rule of thumb but a court will generally look at quality, not quantity of material. For example, four notes wouldn’t usually constitute substantial similarity but if they were the first four notes of Beethoven’s 5th then it may be different (thankfully Beethoven’s 5th is in the public domain). What sets this case apart from predecessors is that there isn’t really any similarity in terms of melody, harmony, chord progressions or structure.
Timeline of the Blurred Lines Case
- August 2013 – Thicke, Williams and Harris (T.I.) sue the estate of Marvin Gaye and Bridgeport Music for declaratory judgment that Blurred Lines did not infringe the copyright held by the defendants. Williams states “anybody that plays music and reads music, just simply go to the piano and play the two. One’s minor and one’s major. And not even in the same key.”
- 21 April 2014 – Williams testifies that he did not go into the studio with any intention of making anything to sound like Marvin Gaye and that Gaye never crossed his mind in the process of creating the song. Evidence was adduced of a media interview contradicting this wherein Williams admitted that he was trying to pretend to be Marvin Gaye.
- 23 April 2014 – Robin Thicke testifies and admits he was high and drunk in every interview he did in 2013 in an attempt to discredit his references to Marvin Gaye in those interviews. In an interview with GQ in May 2013 Thicke stated “Pharrell and I were in the studio and I told him that one of my favourite 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.”
- 30 October 2014 – US District Judge John Kronstadt rules at summary judgment that the Gaye family’s lawsuit against Thicke and Williams could proceed.
- 10 February 2015 – trial begins
- 10 March 2015 – jury finds Thicke and Williams, but not T.I., liable for copyright infringement. The Gaye family were awarded $7.3 million. Shortly after, Thicke, Williams and T.I. lodge an appeal to the 9th Circuit Court of Appeals.
- 24 August 2016 – the defendant’s attorneys submit their opening brief which is a technical justification for why the decision should be overturned arguing that there were “a cascade of legal errors warranting this Court’s reversal or vacatur for new trial”. In essence they said that the District Court failed in its gatekeeping function by not rejecting the case at the summary judgment phase. They allege that the Judge should have been more strict with not letting the non-protectable elements of the music into the trial in any way.
- 30 August 2016 – 212 artists, composers and producers file an amicus brief with the 9th Circuit Court of Appeals in support of Williams, Thicke and T.I. They include members of Train, Linkin Park, Fall Out Boy, R. Kelly, Hans Zimmer and Brian Burton (Danger Mouse). “The verdict in this case threatens to punish songwriters for creating new music that is inspired by prior works… All music shares inspiration from prior musical works, especially within a particular musical genre. By eliminating any meaningful standard for drawing the line between permissible inspiration and unlawful copying, the judgment is certain to stifle creativity and impede the creative process. The law should provide clearer rules so that songwriters can know when the line is crossed, or at least where the line is.”
- 30 August 2016 – 10 musicologists file their own amicus brief echoing sentiment that the verdict could curtail creativity in popular music
- 21 March 2018 – 9th Circuit Court of Appeals affirmed the District Court’s finding (click here for the judgment).
The appeal was heard before three judges of the 9th US Circuit Court of Appeals and lost by 2-1.
The court also restored the jury’s finding that T.I. who contributed a verse to Blurred Lines should not be liable for infringement, saying the trial judge erred in overturning that verdict.
Judge Jacqueline H. Nguyen dissented and said that the songs were not similar enough because they differed in melody, harmony and rhythm, and accused the majority of letting the Gayes “accomplish what no one has before: copyright a musical style.”
As Nguyen pointed out, the Gayes shouldn’t be pleased with the outcome as they own copyrights in many musical works, each of which now potentially infringes the copyright of songs that preceded it.
There were a few key factors that led to this outcome and a few interesting takeouts from the whole process.
Factors that influenced the decision:
- There was a strong reliance on expert evidence of musicologists to demonstrate substantial similarity. Both sides produced a sufficient amount of plausible expert testimony on each side to create an issue of fact to be determined by the jury.
- Access was not an issue and there was evidence of intent to use the plaintiff’s work. After the song reached success both Williams and Thicke were out talking to the media about how inspired they were by Marvin Gaye and that they had the intent to write something similar. In a TV interview for VH1 Thicke admitted one of his favourite songs of all time was Gaye’s Gotta Give It Up and said that they had tried to “get a little groove like that going”.
- Unfavourable defendants. It didn’t help the defendants that Williams was dismissive and Thicke was extremely unsympathetic in their testimony. The artists also contradicted each other in their evidence and Thicke claimed he had been high and drunk in all interviews in 2013 in which he had routinely acknowledged Gaye’s influence. None of this would have looked good to a jury.
- In the US a jury ruling is different from a judge ruling. Each case is judged on its merits and on the specific evidence presented. Therefore the outcome of this case does not represent ‘case law’ that must be followed in the future.
- The appeals court’s job was not to retry the merits of the case but merely to look at whether or not there were any procedural errors in the original case. Thus the appeals court’s decision was that the original case was handled properly and not necessarily that the verdict was just or correct.
- This case demonstrated that you may need less evidence of substantial similarity if there is very strong evidence of access and intent.
While this decision may lead to a culture of musicians not wanting to openly talk about who their influences are, any musician knows that music is not created in a vacuum and nearly all music borrows from what has come before. This will not change the human creative process though artists may feel commercially limited to explore sounds and styles of previous eras.
Perhaps this decision will influence a generation of originality as musicians seek to push boundaries in a way that we haven’t seen before in order to create something “new”. This has been happening for decades in contemporary classical music.
This decision doesn’t mean that musicians can’t be influenced or they can’t borrow ideas from others. It just means that they should acknowledge those influences and provide credit where credit is due. It will be more important than ever to document the process of writing and recording to prove your creative process.
Publishers & record companies:
Music publishers and record companies should be reassessing best practice and exercising extreme due diligence. This may lead an investment in technology (such as improving software that can closely analyse songs and scour the web for similarities) and the employment of expert musicologists to assess tracks before release.
I suspect we will see a new wave of litigation on the horizon. While it’s impossible to measure with certainty the number of music copyright claims (as the majority are settled out of court), this decision and particularly the size of the award of damages will provide incentive for copyright holders (including publishers and estates) to be on the look out.
The fact that Gaye is deceased and this multi-million dollar claim has been brought by his children has encouraged a conversation around the length of copyright. Is it wrong that estates of long dead songwriters are suing current artists and inhibiting creativity? Copyright only used to last 14 years. It now lasts for 70 years after the original author dies. It has been argued that this is well beyond the commercial life of most pop songs and “when copyright does this it stops being an incentive, and becomes a tax on creativity.” These royalties will not encourage Gaye to rise from the grave and create new music, it will just deter current and future artists from building upon his legacy.
Another argument raised against the current state of copyright is that copyright focuses only on similarities when assessing infringement and this ignores the way that all creativity builds upon the past.
On the positive side, copyright respects and attributes originality. It is essential to the livelihood of artists, especially in an era of declining revenue streams (i.e. CD sales).
While imitation may be the sincerest form of flattery, artists may now have to think twice about acknowledging their influences in a meaningful way. After all, there is more to music than rhythm, harmony and notes that is deserving of copyright.
Opening Brief of Willams et al for Appeal (23 August 2016)
Amicus brief of musicologists (30 August 2016)
Appeal Judgment (21 March 2018)