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The “Blurred Lines” case – Sometimes it really is just the vibe

14th April 2015

Robin Thicke Live at the Ziggo Dome Amsterdam  © Tjep Hahury CC by 2.0 Robin Thicke Live at the Ziggo Dome Amsterdam  © Tjep Hahury CC by 2.0

So, chances are you’ve heard “Blurred Lines”. It was a worldwide hit in 2013, selling around 15 million copies, and it made a lot of money for its writers, Robin Thicke and Pharrell Williams.

You may not have heard Marvin Gaye’s “Got To Give It Up” released in 1977 but if you have you may have noticed that “Blurred Lines” borrows from it quite heavily in terms of style. Some of the instrument and arrangement choices are clearly similar, like the bass sound, the cowbell, and the use of falsetto. The general vibe of the song is also objectively similar. It would be fair to say that “Blurred Lines” was influenced by “Got To Give It Up”.

Marvin Gaye passed away in 1984, and copyright in the songs he wrote is now controlled by his estate. Well, someone from the estate heard “Blurred Lines” and apparently decided the two tracks sounded a little too similar. Thinking they might end up being sued for copyright infringement, Thicke and Williams decided it would be a good idea to pre-emptively sue the Gaye Estate, asking for a declaration from the court that “Blurred Lines” did not infringe copyright in “Got To Give It Up”.

It did not go well.

The Gaye Estate countersued, claiming copyright infringement and seeking substantial damages. The judge refused to make the declaration sought by Thicke and Williams, and a jury trial in a United States District Court was held in February and March 2015. On 10 March 2015 the jury found in favour of the Gaye Estate, awarding them US$7.4 million in damages.

The decision surprised many observers who felt that while it was clear “Blurred Lines” borrowed stylistically from “Got To Give It Up”, there was no substantial copying, and therefore no infringement.

So how did this happen?

As the trial was determined by jury there are no published reasons for their decision. However there is some interesting commentary by the judge in his written reasons on procedural points leading up to the trial.[1]

Fundamental to the case was the fact that the Gaye Estate only controlled copyright in the musical composition of “Got To Give It Up”, and not the studio recordings, which are owned by Motown Records. The judge did not allow the full studio recordings to be played to the jury, as he felt it would “unduly influence” them. The case focused on the limited transcription of the song that was lodged with the US Copyright Office in 1977, and ultimately the infringement claim focused on comparison of a handful of musical phrases and hooks embodied in the written transcription.

Both parties led expert musicologist evidence, but unsurprisingly the musicologists’ opinions each supported the position of the side they had been engaged by. The Gaye Estate’s musicologist opined that there was a “constellation” of eight musical features that bore significant similarity, whereas Thicke and Williams’ musicologist claimed there was no similarity at all. From what the judge included in his comments, neither set of musicologist evidence was hugely persuasive.

Some speculated that Thicke’s behaviour in the media, where he said that “Got To Give It Up” was one of his favourite songs and that he told Williams they should write a song with the same “groove”, gave the jury the belief that Thicke and Williams had set out to copy the track.[2] Later, Thicke gave a deposition in which he claimed to have been drunk and high during the writing of “Blurred Lines”, that he hadn’t really made much of a contribution to it, and that he had taken a writing credit out of vanity. He effectively laid the entire blame for any potential infringement at the feet of Williams. Some commentators believe this behaviour turned the jury against Thicke, and that they found against him on that basis regardless of the apparent scarcity of evidence pointing to infringement.[3]

Could this happen in Australia?

The last major case considering infringement of copyright in a musical work in Australia is the Kookaburra case from 2011.[4] In that case the songwriters of Men At Work’s “Down Under” were held to have infringed copyright in “Kookaburra Sits In The Old Gum Tree” by incorporating a two-bar musical phrase into part of the hook of “Down Under”.

In his judgment, Justice Emmett noted that the wording of the Copyright Act recognises that there may be some amount of copying that does not constitute infringement, and that infringement will occur only when the threshold of copying of a “substantial part” is reached.

Determining infringement is not necessarily a question of a note-for-note comparison, but of whether the substance of the original copyright work is taken by the infringing work. This involves a two-step process:

  1. are the original work and the alleged infringing work objectively similar? This is a purely objective question of fact, depending on aural perception, but also to some extent on expert evidence; and then
  2. the subjective analysis of whether the alleged infringer copied the copyright work, or whether the alleged infringing work is an independent work.[5]

When determining whether there has been a reproduction the court may consider the melody, tempo, harmony and structure of the two works, but there is always the overarching consideration of whether any part or parts taken constitute a “substantial part” of the original copyright work.

The “Blurred Lines” case is in many respects the inverse of the  “Kookaburra” case. In the “Kookaburra” case two bars of a short but highly recognisable work had been taken and incorporated into a larger work. In the “Blurred Lines” case the overall style of “Got To Give It Up” had been reproduced, but with little evidence of any direct copying (depending on how much weight is placed on the various expert evidence). Yet in both cases infringement was established.

It would be open for an Australian court to make a finding of infringement, provided the court was satisfied that a substantial part of “Got To Give It Up” had been reproduced in “Blurred Lines”. In Australian proceedings it’s likely that the studio recordings would have been admissible, which may have assisted the Gaye Estate’s case given the clear aural similarities. But again, a determination of what was a reproduction of the “vibe” or “style” of the composition and what was copying amounting to infringement would need to be made by the court.

Should you be concerned?

No, not really. The fundamental principle remains that copyright does not protect an idea, only the expression of it. This decision has no binding precedential value in Australia, but of course, if you’re making music these days that music is probably available online and can be accessed globally. From a practical perspective, it’s unlikely you’re going to be sued for copyright infringement unless your composition blows up and sells a lot of copies. That said, you should still be careful not to directly or closely copy any parts of an existing composition in your songwriting, because you never know when you’re going to have that one big hit

Andrew Cameron is a lawyer at Brett Oaten Solicitors

 

[1] See, for example, the discussion of expert musicologist evidence in Pharrell Williams, et al v Bridgeport Music Inc, et al (CD Cal, Case No: LA CV13-06004 JAK (AGRx), 30 October 2014), Order Re: Plaintiff’s and Counterdefendant’s Motion for Summary Judgment, or in the Alternative, Partial Summary Judgment.

[2] Stelios Phili, Robin Thicke on That Banned Video, Collaborating with 2 Chainz and Kendrick Lamar, and His New Film (7 May 2013) GQ  <http://www.gq.com/blogs/the-feed/2013/05/robin-thicke-interview-blurred-lines-music-video-collaborating-with-2-chainz-and-kendrick-lamar-mercy.html>.

[3] Andy Hermann, Great, Now “Blurred Lines” Has Ruined The Entire Music Industry (11 March 2015) LA Weekly <http://www.laweekly.com/music/great-now-blurred-lines-has-ruined-the-entire-music-industry-5427407.

[4] EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd [2011] FCAFC 47 (31 March 2011).

[5] Ibid [66].