A case of Blurred Lines between style and substance?

Posted: March 26, 2015

A federal jury in Los Angeles has found that the 2013 hit song Blurred Lines copied elements of Marvin’s Gaye’s song Got To Give It Up without permission.1  Two of the co-writers, Robin Thicke and Pharrell Williams, were found to have infringed copyright.  The court awarded nearly $7.4 million in total as compensation to Gaye’s family.  Although it is likely to be appealed, this is a rare decision on copyright infringement in a music context and turns on the fine line between influence and imitation in the context of an intended “style-alike”.  The case also seems to have turned on certain niceties of US law and court procedure, and it is worth considering whether the case might have been decided differently under English law.

Background

Gaye wrote and recorded Got To Give It Up in 1976.  It was released in 1977, and it was a number-one hit in the same year.  Blurred Lines was written in 2012 and was a worldwide success, reaching number one in 20 countries.  In the USA, it was the longest-running number-one single of 2013 and of the entire decade.  The song subsequently became one of the best-selling singles of all time, with sales of 14.8 million and breaking the record for the largest radio audience in history.

The case began on 15 August 2013, when lawyers acting for Thicke and Williams filed an application for a court declaration that they had not infringed the copyright in Got To Give It Up, in order to protect their clients against infringement claims that had allegedly been made in private by the Gaye family.  The rapper T.I. (whose real name is Clifford Harris Jr.) was included in this application for a declaration, as a co-writer of Blurred Lines, as were the record labels that released it.  Gaye’s music publisher, Bridgeport Music, Inc., and three of Marvin Gaye’s children quickly counterclaimed, alleging that Blurred Lines copied the bass line and other elements of Gaye’s Got To Give It Up and copied the “defining funk” of its cowbell accents.

Evidence

In presenting their respective cases, both sides adduced expert evidence from musicologists on the features of the songs.  The Gayes’ musicologists, Judith Finell and Dr Ingrid Monson, identified eight substantial similarities in their view: (a) the signature phrase in the main vocal melodies; (b) the hooks; (c) the hooks with backing vocals; (d) the core theme in Blurred Lines and back-up hook in Got To Give It Up; (e) the back-up hooks; (f) the bass melodies; (g) the keyboard parts; and (h) the unusual percussion choices.  They submitted that the similarities between the songs “surpass the realm of generic coincidence, reaching to the very essence of each work”, and that the songs share a “constellation of similarities”.2  The shared departures from conventional elements of R&B music, such as the party noises in the recordings, unusual cowbell patterns, omission of guitar and use of male falsetto all further contributed, in the view of the Gaye family, to the finding of substantial similarity.  The Gayes’ musicologists also submitted a mash-up of the two songs to the court, in which coinciding passages from the songs were combined and heard simultaneously to demonstrate the similarity of the tracks.

In contrast, Williams and Thicke adduced expert evidence that the extrinsic similarity between the songs was minimal and was to do with “evoking the mood of an era” rather than any musical themes protected by copyright.  Their musicologist provided transcriptions of both the tracks, breaking down each alleged similarity by its notes, chords and prior art to determine what original elements were similar.  She testified that there are no two consecutive notes with the same pitch, duration and placement in the two tracks.  Their lawyers pointed to the lack of transcriptions in the Gaye family’s expert evidence and the importance of transcriptions in demonstrating copying of a copyright work.3

The Gaye family also sought to rely on statements made by Thicke and Williams in interviews that they had been inspired by Marvin Gaye and Got To Give It Up.  In witness evidence, Williams admitted that he had been influenced by Gaye’s work, and Thicke claimed that he had been drunk and high when he stated in interviews they had pretended they were Marvin Gaye when writing Blurred Lines.4 His lawyers argued that, even if it were true that Thicke and Williams were inspired by Gaye or even if they had imitated his work, this did not amount to copyright infringement, as ideas are not protected by copyright and there was still no substantial extrinsic similarity between the songs.  In the witness box, Thicke played bars from several well-known tracks to demonstrate their similarities and to support his lawyers’ argument that no pop music is truly original.

Procedure

The case was heard before a jury (which would not happen in the UK), and so there is no written judgment or reasoning to analyse at this stage.

Judge John A. Kronstadt also instructed the eight jurors to compare the tracks only on the basis of the sheet music filed as a copyright deposit (since a copy of all published works must be held on file by a registry to demonstrate copyright ownership in the USA).5  This did not include the original sound recording of Got To Give It Up, because a sound recording was not a registrable copyright at the relevant time in the US (unlike the automatic protection that the sound recording would have received in the UK).6  So while the jurors heard Blurred Lines in its original recording, they only heard a version of Got To Give It Up created on the basis of the sheet music submitted to gain copyright protection.  This was lampooned by the attorney acting for Thicke and Williams as a “Frankenstein-like monster” that did not accurately represent Got To Give It Up.  So the jury could not compare transcriptions of the actual sound recordings, which might arguably have highlighted further differences.

Decision

On 10 March 2015, the jury found that the copyright of Got To Give It Up had been infringed by Thicke and Williams in Blurred Lines, but that they had not done so wilfully.  The third co-writer, rapper T.I., was not found to be liable, nor were the record labels that released Blurred Lines, Star Trak and Interscope, a division of Universal Music which distributed it.

The jury awarded $4 million in damages and nearly $3.4 million by way of an account of profits.

As a separate matter raised in the same hearing, the jury found Thicke had not infringed the copyright in another Marvin Gaye song, After the Dance, in a separate record.

Practical implications

Pharrell Williams expects the verdict to have a chilling effect on songwriters, contending that it “handicaps any creator out there who is making something that might be inspired by something else” and fearing that “the entertainment industry as we know it will be frozen in litigation”.7

Issues of infringement of this nature are in fact regularly brought to the attention of writers and publishers. But to date the likelihood of their reaching court (let alone a court decision) has been slim given the high costs involved in bringing such actions.  For example, recently, the writing credit on the Sam Smith track Stay With Me was amended to include Tom Petty and Jeff Lynne, writers of the song I Won’t Back Down, following claims that Smith had copied that work.  By reaching a negotiated settlement, each side avoided the risk of legal costs and likely reputational damage of a court case, and this has been the usual approach in the music industry to date.

It seems that the Gaye family had initially approached the co-writers of Blurred Lines with a demand for 100% of the copyright in Blurred Lines, a position that the co-writers understandably rejected.  It appears from an open letter by their attorney that Thicke and Williams had made the Gaye family a “substantial offer”, which was rejected, ultimately prompting his clients’ application to court.  Plainly a song with the phenomenal success of Blurred Lines is rare, and this could in part explain why the Gaye family were not prepared to reach an out-of-court settlement over the songwriting credits.  At any rate, it appears that neither side was willing to compromise at the negotiation stage.  The attorney for the Gaye family then expressed scepticism about the co-writers’ tactics in seeking declaratory relief and surmised that Thicke and Williams “believed the Gayes didn’t have the resources and the wherewithal to fight”.

Whatever the motivations behind the case, the result is a decision that could, at least under US law (and if upheld on appeal), prevent songwriters from paying homage to earlier works and artists.  It is, however, hard to assess how a US court might have decided the case if the earlier song had been recorded on or after 1978, when sound recordings were recognised as copyright works in the USA, so allowing a more detailed comparison of the works (and one that might be more readily understood by a court).

Comparison with English law

Had the case been brought in the English courts, a single judge would consider whether a substantial part of the work had been copied.8  The judge would analyse the works using the House of Lords test in Designers Guild v. Williams:9  in assessing copying of a substantial part, the part to be assessed is the part of the work that has been copied, not part of the copy, and in determining substantiality, the test is qualitative (and not quantitative).

Both sides, as has happened in this case, would probably instruct musicologists to produce expert evidence for the court to consider.  This is where the analysis might become extremely detailed.  Although the Gaye and Thicke recordings sound noticeably similar to each other in tempo, instrumentation, mood, style and overall impression, the actual detailed similarities in terms of musical elements seem subtle (and at any rate not clear-cut) and there are numerous obvious differences (especially in terms of the lyrics).  The court would hear the experts’ submissions, but it would ultimately be a question for the judge to decide.

One procedural difference from the US case is that any analysis of the similarity of the songs could have focused on transcriptions of the actual sound recordings as well as the sheet music.  As Laddie J pointed out in IPC Media Ltd v Highbury-Leisure Publishing Ltd,10 the first step in a copyright action is for the claimant to identify the work(s) relied on.

Also, as Laddie J observed in that case, it is necessary: “to be alert to the possibility of being misled by what may be called similarity by excision … In copyright cases, chipping away and ignoring all the bits which are undoubtedly not copies may result in the creation of an illusion of copying in what is left.”  He warned against losing sight of the differences between the claimant’s work and the alleged infringement and emphasised that the differences are important in deciding whether copying has taken place.  The US jury might arguably have been swayed in this way, as the Gaye sound recording could not be relied on and so neither could any transcriptions of the sound recordings, which might arguably have emphasised the differences.

Next steps in the US case

Lawyers for the Gaye family have now filed documents asking that the court “correct the jury’s verdict” by holding more than just Thicke and Williams liable, and to include T.I. and the record companies as infringers as per their original claim.  The Gaye family have also asked the judge for an injunction to prevent further copying, distribution and performance of Blurred Lines.  If successful, an injunction could give the family leverage to negotiate for royalties and other concessions, such as a final settlement of the songwriting credits (which would be an important step for the Gaye family if similar cases are to be avoided in other jurisdictions).

At the same time, lawyers for Thicke and Williams have indicated that they will be appealing the US jury’s decision.  Separately, their attorney has issued an open letter stating that this matter is “not finished by any stretch of the imagination”.11  It remains to be seen whether the parties reach a deal outside court, or whether a full judicial decision will be handed down following an appeal.

For the Gaye family, then, this is, par excellence, a case of Blurred Lines.  Yet it seems doubtful that Thicke and Williams will easily accept that they have Got To Give It Up.

Gillie Abbotts

Associate, Michael Simkins LLP

[1] Pharrell Williams, Robin Thicke and Clifford Harris, JR. v Bridgeport Music, Inc., Frankie Christian Gaye, Marvin Gaye III, Nona Marvisa Gaye, CASE NO. CV13-06004-JAK (AGRx) Hon. John A. Kronstadt, Ctrm 750.

[2] Finell Decl. ex. 1 at 7.

[3] Plaintiffs and Counter-Defendants’ reply in support of motion for summary judgment or, in the alternative, partial summary judgment; memorandum of points and authorities in support thereof dated 10 February 2015, p. 1.

[4] 7 May 2013, G.Q. article, as quoted at paragraph 4 of the Declaration of Richard S. Busch in Support of Counter-Claimant’s Opposition to Plaintiffs and Counter-Defendants’ motion for summary judgment or, in the alternative, partial summary judgment dated 20 October 2014.

[5] Any copyright work that is published in the USA must be submitted in two copies to the US Copyright Office at the Library of Congress.  This mandatory deposit is not required to possess copyright of unpublished works, but a copyright registration can give an author enhanced remedies in the event of copyright infringement.

[6] US law has since changed: see 17 U.SC. 408.

[7] As reported in the Guardian: see http://www.theguardian.com/music/2015/mar/20/pharrell-blurred-lines-copyright-lawsuit-stifle-creativity.

[8] Copyright, Designs and Patents Act 1988, s. 16(3).

[9] [2000] 1 WLR 2416.

[10] [2004] EWHC 2985 (Ch) at [8].

[11] Open letter by Howard King, published by The Hollywood Reporter on 12 March 2015:  http://www.hollywoodreporter.com/thr-esq/blurred-lines-verdict-pharrell-williams-781040.