This first update is from Tom Ohta writing on the IPKat
Robin Thicke’s hit, Blurred Lines, has caused controversy not only for its lyrics, but also for its musical provenance after Marvin Gaye’s children alleged that Blurred Lines infringed copyright in Marvin Gaye’s Got To Give It Up resulting in a trial before the Californian District Court currently scheduled to start next Tuesday, 17 February. As readers may recall the litigation arose after Pharrell Williams, Robin Thicke and Clifford Harris, Jr., pre-emptively sought declaratory relief that Blurred Lines did not infringe copyright in Gaye’s Got To Give It Up, following accusations by the Gaye family of unlawful similarities between the two works.
The Gaye’s expert musicologist studied the sheet music and sound recordings of the two works and identified eight “ substantially similar” features which “ surpass the realm of generic coincidence”. The Gayes argued that it was improbable that a third-party work would contain all of these features in a “ similar constellation” – and that those similarities in Blurred Lines must therefore be indicative of unlawful copying.
In this case, it was not disputed that Robin Thicke had listened to Gaye’s Got To Give It Up before Blurred Lines – and he perhaps did not help himself when, in an interview with GQ in May 2013, he responded to a question about the origin story behind Blurred Lines,
“Pharrell and I were in the studio and I told him that one of my favorite 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’.”
Blurred Lines is an apt description of that murky threshold between taking lawful creative inspiration from an earlier copyright work and unlawfully misappropriating protected elements from it. This is a particularly pertinent issue for musical works, where creative inspiration is commonly drawn from prior works, often at a subconscious level. [An example of this is the well-known case brought by the Chiffons in relation to George Harrison’s My Sweet Lord, where George Harrison was found guilty of ‘subconscious plagiarism’ – see Bright Tunes Music v. Harrisongs Music 420 F. Supp. 177 (S.D.N.Y. 1976)]
Furthermore, there is perhaps a greater potential for two musical works to sound similar even though they have been independently created without knowledge of the other. In this regard, a recent study by Noah Askin and Michael Mauskapf concluded that the key to chart success in the music industry is to create a song which differs, but only very slightly, from the conventional formula of the songs of the same era. The study also suggested that the majority of popular chart songs were deemed to be generally similar when assessed against the study’s criteria of tempo, key, duration, mode and time signature, but also “danceability” (an analysis of beat and rhythm); “valence” (an analysis of the song’s positivity); and “speechiness” (the presence of the spoken word). [However, even where a second work (which sounds similar to the first work) has been created completely independently, in practice, it can prove challenging to prove a negative, namely that the second author was not aware of the first author’s work.][The recent settlement between Sam Smith and his co-writers Jimmy Napes and William Phillips on ‘Stay With Me’ with Jeff Lynn and Tom Petty, who wrote the 1989 hit ‘I Won’t Back Down’ is a good example of this – Smith saying and Petty accepting any copying was ‘accidental’].
Another practical challenge raised by sound-alike litigation is in proving ownership and subsistence of copyright, which can be an immensely time-consuming and expensive exercise. For instance, the Gayes hit an evidential stumbling block when they sought to rely on the sound recording of Got To Give It Up which contained certain elements not found in the sheet music (such as the backup vocals, percussion parts, and “ the use of party sounds as accompanying sounds”). This was because the sound recording had not been deposited with the Copyright Office, which left open the issue of whether it satisfied the publication and registration requirements under the 1909 Copyright Act.
Following numerous interim skirmishes and a volte-face by the judge in its recent Order, the Gayes are now required to create an edited version of the sound recording in which all those elements not found in the sheet music (such as percussion and backup vocals) have been removed. It will therefore be an edited sound recording of Got To Give It Up played to the jury and compared against Blurred Lines in the trial scheduled to commence next week. Watch this space.
Listen to the tracks yourself: a handy YouTube clip where you can compare Blurred Lines against Got to Give it Up [subject to the caveat that this isn’t what the jury will be hearing for the reasons explained above] https://www.youtube.com/watch?v=ziz9HW2ZmmY
UPDATE: The eight-member federal civil jury has now been selected for trial. Judge John A Kronstadt asked prospective jurors if they were familiar with the music of Williams and Gaye, whether they played or read music, if they had any thoughts about copyright law and if they were likely to be offended by music videos showing “scantily attired or not attired” women. Many prospective panellists said they were not familiar with Gaye’s music, but knew Williams’ hits, particularly “Happy.”
In their opening statements, both attorneys used exhibits on the first day of trial. Thicke’s attorney Howard E. King told the jury in his opening statement: “We’re going to show you what you already know: that no one owns a genre or a style or a groove. To be inspired by Marvin Gaye is an honorable thing” and played the colorful “Blurred Lines” video, first telling panellists that there were two versions produced. Earlier, Gaye family lawyer Richard S. Busch told the panel that the two songs are “very similar and, at some points, identical,” and that Thicke and Williams admitted in interviews that “Got to Give It Up” was the template for “Blurred Lines”. Busch played a “mash-up” of a segment of Gaye’s “Got to Give It Up” vocals placed over a portion of the “Blurred Lines” melody, played by an electronic keyboard — in an attempt to demonstrate how similar the two elements were. Thicke, facing away from the jury, mouthed the words, “No way,” and shook his head.
Judge Kronstadt told attorneys for both sides that they would have three days each to present their cases before the jury. The case began with testimony from Thicke and this primarily that whilst theer may be similarities in chord sequences between the two songs, those are just chord sequences that appear in lots of pop records. In response, Busch, went through a list of structural similarities between ‘Blurred Lines’ and ‘Got To Give It Up’, all of which Thicke said were just “standard formats”, although when put on the spot he did struggle to name many other songs that employed said standards.