The recent ruling of the Ninth Circuit Court of Appeals, affirming the district court’s decision that Pharrell Williams and Robin Thicke’s smash hit “Blurred Lines” impermissibly copied Marvin Gaye’s 1977 “Got to Give It Up” has created a stir in both the legal and artistic communities. Below, Lawyer Monthly hears from Dr. Dariush Adli, President and Founder of ADLI Law Group, who examines the extent and application of copyright infringement protections.
The legal community has been following the case to determine whether it changes the standard for copyright infringement in musical works and potentially other artistic fields. The artistic, and especially the music, community is concerned that the decision will hamper creativity by making it easier to prove copyright infringement.
The dispute started in 2013 when heirs of music legend Marvin Gaye complained that “Blurred Lines”, written by Williams and Thicke in 2012, was too similar to Gaye’s 1977 hit “Got to Give It Up.” When negotiations failed to resolve the dispute, Gaye’s estate filed a lawsuit against Williams and Thicke for copyright infringement in Los Angeles Federal District Court.
A key issue in the case was which aspect of “Got to Give it Up” was eligible for copyright protection. “Got to Give it Up” was created in 1976, when copyright protection was limited to a musical work’s “sheet music”, i.e., the written notes that identify pitches (melodies), cords or rhythms of a song or musical piece, and did not extend to live performance of the music.
In order to prove their case for copyright infringement at trial, Gaye’s lawyers needed to show that i) Williams and Thicke had access to “Got to Give it Up”, and ii) that the two songs were substantially similar. Williams and Thicke admitted on the stand that their work had been inspired by Marvin Gaye and that they did have access to Gaye’s “Got To Give It Up.” So the case came down to whether Gaye’s lawyers could prove substantial similarity of the two musical works. As to how much similarity was required to prove infringement, the judge applied a sliding scale standard to the access/similarity determination. Under that standard, a higher demonstration of access leads to a lower requirement for a showing of similarity. Because Williams and Thicke had conceded access to Gaye’s song, the court lowered the required showing of substantial similarity for proving infringement.
The judge instructed the jury that they should apply two tests to their determination of substantial similarity of the works: an objective and a subjective test. The objective test involves comparing the protectible constituent musical elements of “Blurred Lines” for substantial similarity with “Got to Give it Up.” The subjective test, on the other hand, asks whether an ordinary person would find the works to be substantially similar.
Another key issue in the case was whether “Got to Give it Up” was entitled to broad or thin (narrow) copyright protection. Under legal precedent, the test for making that determination is availability of the “range of expression” for the type of work at issue. If the available range of expression for a copyrighted work is small, then copyright protection for the work is “thin” and proving infringement requires a showing of virtually identical copying. If, on the other hand, the range of expression for the work is wide, then the work is entitled to “broad” copyright protection, meaning that infringement can be proved by showing substantial similarity. The court ruled that musical compositions are entitled to broad copyright protection because music is comprised of a large array of musical elements, which can lead to innumerable protectible combinations.
In a split 2-1 decision, the Ninth Circuit’s panel of three judges upheld the lower’s court’s determination that “Blurred Lines” infringed “Got to Give it Up.” The majority opinion denied that its decision changes the standard for determining copyright infringement by making it easier to find similarity based on style or “groove.”
A vigorous dissent dismissed the similarities between the two works as “merely trivial” and argued that Gaye’s experts had succeeded in confusing the jury by “cherry picking” snippets of unprotectable musical elements in the two works to make them appear substantially similar. While noting the trial testimonies of Thicke and Williams, who had admitted being inspired by Marvin Gaye’s style of music and undisputed evidence of some copying by them, the dissenting opinion nevertheless found the similarities to be insufficient under the law for a conclusion of infringement. To make this point, the dissent pointed to a video shown by the Thicke Parties to the jury, demonstrating how a common sequence of four chords serves as the harmonic backbone of many songs.
The dissenting judge also criticized the majority decision for giving “Got to Give it Up” a broad scope of protection and failing to focus its analysis on the copyrighted sheet music, as opposed to the unprotected live performance of the song. The dissent pointed out that based on the limited number of musical notes, there is a limited number of original combination that are capable of protection under copyright law. Finally, the dissent cautioned that musical copyrights owned by the Gaye heirs may now be susceptible to claims of infringement by older songs.
The question of whether the decision changes the legal standard for determining copyright infringement or whether it will hamper artistic creativity must await further legal developments in court and perhaps on the legislative front.
