MBHB Snippets: Review of Developments in Intellectual Property Law - Volume 12, Issue 1 (Winter 2014): The Blurred Lines of Copyright Infringement of Music Become Even Blurrier as the Robin Thicke v. Marvin Gaye’s Estate Lawsuit Continues

Robin Thicke’s massively popular and controversial “Blurred Lines” song has captured much public attention, including the attention of the family of Marvin Gaye who accused Thicke of using elements of Marvin Gaye’s song, “Got to Give It Up” in “Blurred Lines” and allegedly threatened litigation if a monetary settlement were not paid.[1] Thicke filed a preemptive declaratory judgment lawsuit against Gaye’s family after alleged preliminary settlement negotiations had failed. Subsequently, Gaye’s family filed separate counterclaims in response, accusing Thicke of copyright infringement of Gaye’s songs “Got to Give It Up” and “After the Dance,” as well as EMI April, Inc. (“EMI”) of breach of contract and its fiduciary duties.[2] In this article, we discuss the latest developments in this high-stakes legal fight and the difficulty the court will have in drawing the line between inspiration and copying in the blurry area of copyright infringement of music.[3]

Gaye’s family launches separate counterclaims against Thicke and EMI

Thicke, along with “Blurred Lines” co-writers Pharrell Williams and Clifford Harris, Jr. (p/k/a T.I.), filed a declaratory judgment action on August 15, 2013 in the U.S. District Court for the Central District of California in Los Angeles against Gaye’s family and Bridgeport Music (“Defendants”).[4] The declaratory judgment action requested a ruling that “Blurred Lines” does not infringe on Gaye’s “Got to Give It Up” as well as Funkadelic’s song “Sexy Ways.”[5] The complaint asserts that Defendants alleged that “Blurred Lines” copied their compositions, but that “there are no similarities between plaintiffs’ composition and those the claimants allege they own, other than commonplace musical elements.”[6] The Plaintiffs allege that they created a hit and did it without copying anyone else’s composition. The complaint further asserts:

The basis of the Gaye defendants’ claims is that “Blurred Lines” and “Got To Give It Up” “feel” or “sound” the same. Being reminiscent of a “sound” is not copyright infringement. The intent in producing “Blurred Lines” was to evoke an era. In reality, the Gaye defendants are claiming ownership of an entire genre, as opposed to a specific work, and Bridgeport is claiming the same work.[7]

However, Gaye’s family disputes Thicke’s position. After Thicke filed his preemptive lawsuit against Gaye’s family, Frankie Christian Gaye and Nona Marvisa Gaye, and Marvin Gaye III filed separate counterclaims in response, alleging that Thicke’s “Blurred Lines” and “Love After War” infringe Gaye’s “Got to Give It Up” and “After the Dance,” respectfully.[8] In their filings, Gaye’s family claims that Thicke’s idolization of Marvin Gaye’s music has led to a pattern of wholesale copying from Gaye’s songs, which in addition to “Blurred Lines” and “Love After War,” included Thicke’s “Make U Love Me” (allegedly copied from Gaye’s “I Want You”) and Thicke’s “Million Dolla Baby” (allegedly copied from Gaye’s “Trouble Man”), though the latter two songs are not at issue in the counterclaims.[9] Gaye’s family complains that those tunes “contain substantially similar compositional material in their choruses, including the melodies of their hooks.”[10]

In the first set of counterclaims, Frankie Christian Gaye and Nona Marvisa Gaye name several other defendants in addition to Thicke, Williams, and Harris, collectively referred to as the “Blurred Lines Defendants” for infringement of “Got to Give It Up” and the “Love After War Defendants” for infringement of “After the Dance.”[11] Specifically, Count I of Frankie and Nona Gaye’s counterclaim alleges that the Blurred Lines Defendants copied at least eight “distinctive and important compositional elements” of “Got to Give It Up.”[12] Count II alleges that the Love After War Defendants infringed Gaye’s “After the Dance” by copying the chorus and hook, which is allegedly “recognizable by an ordinary observer.”[13] Specifically, the counterclaim alleges that both “Love After War” and “After the Dance” share: (1) unusual and distinct harmonies accompanying the hooks; (2) distinct rhythm on the last note of the hooks; and (3) choruses that constitute an unusually large proportion of each song.[14]

Frankie and Nona Gaye further sued third parties Jobete Music Co., EMI, and Sony/ATV Music Publishing Acquisition, Inc. (collectively referred to as “EMI”) for breach of contract, breach of the covenant of good faith and fair dealing, and breach of fiduciary duty.[15] Frankie and Nona Gaye countered that EMI,[16] the Sony/ATV-owned song publisher that has a contractual relationship with both sides, failed to protect their interests by attempting to interfere with the Gaye family’s pursuit of these claims.[17] In particular, Frankie and Nona Gaye allege that EMI showed such an allegiance to the “Blurred Lines” writers to go so far as to falsely tell the press that Gaye’s family turned down a “six figure settlement” offer from Thicke in order to make Gaye’s family seem unreasonable.[18] According to Frankie and Nona Gaye, “no such offer was made.”[19] Frankie and Nona Gaye, however, subsequently dropped their counterclaims against these third parties.[20]

Marvin Gaye III, the eldest son, filed his own counterclaims to Thicke’s preemptive suit naming the same counterclaim defendants as Frankie and Nona Gaye.[21] While Marvin Gaye III also alleged copying of four Gaye songs, like his siblings, his copyright counterclaims are directed against “Blurred Lines” and “Love After War” only.[22] Unlike his siblings’ counterclaims, Marvin Gaye III did not allege that EMI breached a contract and its fiduciary duty by failing to protect Gaye’s songs.

In addition to monetary damages, Gaye’s family seeks a permanent injunction by the court to prohibit the sale, distribution, reproduction, and any public performance of “Blurred Lines” and “Love After War” by the counterclaim defendants.[23]

Thicke filed answers to both Frankie and Nona Gaye’s and Marvin Gaye III’s counterclaims on December 13, 2013 and December 16, 2013, respectively, mostly denying all of the allegations.[24] In addition, the Plaintiffs have settled the declaratory relief claim against Bridgeport Music, Inc. over the allegation that “Blurred Lines” also infringed George Clinton’s song, “Sexy Ways,” and Bridgeport is no longer a party to the suit.[25]

Discovery is scheduled to begin in April, 2014, with a three-week jury trial scheduled to begin in January, 2015.[26]

Thus, the Gaye family’s counterclaims further complicate the lawsuit by alleging that in addition to “Blurred Lines,” Thicke’s “Love After War” also infringed Gaye’s “After the Dance” song.

Ninth Circuit’s Standard for Copyright Infringement of Music

Thicke’s case was filed in the Central District of California and therefore the Ninth Circuit’s standard for copyright infringement applies. In order to prove copyright infringement, the plaintiff needs to demonstrate: (a) that it is the owner of a valid copyright, and (b) that protected elements of the copyrighted work were copied by the defendant.[27] Assuming that the plaintiff can demonstrate proper ownership with the copyright registration, the plaintiff must then prove that the defendant copied the work with either direct or circumstantial evidence.[28]

To prove copying with circumstantial evidence, the plaintiff needs to demonstrate: (a) access to the copyrighted work, and (b) substantial similarity between the allegedly infringing work and the copyrighted work.[29] Access to the copyrighted work may be shown by demonstrating that the defendant had actual knowledge of the plaintiff’s work or had a “reasonable opportunity” to access the plaintiff’s work.[30] For cases involving musical compositions, a plaintiff may have more success proving access through widespread dissemination of its work by presenting evidence such as record sales or radio performances.[31]

Courts in the Ninth Circuit have applied an “Inverse Ratio” rule with respect to circumstantial evidence.[32] That is, the more access the defendant had to the copyrighted work, the less similarity must be shown to prove copying has occurred.[33] The Ninth Circuit has also clarified that a court does not need to apply a “substantially similar” analysis when there is direct evidence that the defendant duplicated the plaintiff’s entire work.[34]

The inquiry into whether two musical works are substantially similar depends on the facts of each case.[35] In determining whether two musical works are substantially similar, the Ninth Circuit employs a two part analysis: (1) an objective “extrinsic” test, and (2) a subjective “intrinsic” test.[36] The extrinsic test is applied by the judge, and typically relies on testimony from musicologist experts to establish substantial similarity.[37] If substantial similarity of ideas is found under the extrinsic test, summary judgment is precluded and the case moves before a jury who applies the intrinsic test.[38]

While many courts have identified criteria for analyzing a musical composition, the Ninth Circuit has never announced a set of criteria under the extrinsic test since “a musical composition can be comprised of a number of otherwise unprotectable elements, including lyrics, rhythm, pitch, cadence, melody, harmony, tempo, phrasing, structure, chord progression, instrumental figures, and others.”[39] Without expressly delineating the extrinsic elements of musical works, the Ninth Circuit acknowledged that it would be difficult for the lower courts to apply the extrinsic test.[40]

When the copying of unprotectable musical elements is in dispute, the Ninth Circuit has also applied a scenes a faire analysis.[41] Under U.S. copyright law, the doctrine of scenes a faire provides that “when certain commonplace expressions are indispensable and naturally associated with the treatment of a given idea, those expressions are treated like ideas and therefore not protected by copyright.”[42] The court’s scenes a faire analysis is not dependent on whether or not the plaintiff copied the prior work.[43] Instead, the court must explore whether “‘motive’ similarities that plaintiffs attribute to ‘copying’ could actually be explained by the commonplace presence of the same or similar motives within the relevant field.”[44] In order for the court to grant summary judgment on scenes a faire alone and without independent evidence, the scenes a faire allegation must be uncontested.[45]

Yet, the Ninth Circuit has found that the combination of unprotectable elements in a musical work may support a finding of substantial similarity.[46] For example, in Three Boys Music Corp. v. Bolton, the Ninth Circuit upheld the jury’s finding that two songs were substantially similar due to the presence of the same five individually unprotectable elements: “(1) the title hook phrase (including the lyric, rhythm, and pitch); (2) the shifted cadence; (3) the instrumental figures; (4) the verse/chorus relationship; and (5) the fade ending.”[47]

Here, it appears that Thicke, Williams, and Harris will argue that a high falsetto voice, vocal and musical layering and beat are common unprotected elements, that “Blurred Lines” was intended to be a tribute to an era, and that being reminiscent of a “sound” is not copyright infringement.[48]

However, Gaye’s family has honed in on Thicke’s admission that he was inspired by Marvin Gaye and was quoted in GQ as stating:

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.’ Then he started playing a little something and we literally wrote the song in about a half hour and recorded it.[49]

Courts in the Ninth Circuit may consider such statements as an admission of Thicke’s access to Gaye’s music, or evidence of subconscious copying.[50]

While no direct copying is involved since there was no actual sampling or literal copying of Gaye’s music and lyrics, there are audible similarities between “Blurred Lines” and “Got to Give it Up.” The question is whether these similarities are protectable elements of Gaye’s song and if so, whether these protectable elements were appropriated in “Blurred Lines” such that the works are substantially similar. Case law supports that appropriation of even a few notes from a copyrighted song may be enough to establish copyright infringement.[51]

The lawsuit raises issues related to the idea/expression dichotomy of copyright law, namely that copyright protects the expression of an idea but not the idea itself. That is, a copyright protecting Gaye’s song would not protect those portions of the song that are common; it protects only those parts of the song that are original to Gaye.[52] Since the requirement is one of substantial similarity to protected elements of the copyrighted work, the trier of fact must first distinguish between the protected original, expressive elements and unprotected commonplace material in plaintiff’s work.[53] Once these specific protected elements in Gaye’s song have been identified, the trier of fact must then determine whether “Blurred Lines” substantially appropriated these protected elements of Gaye’s song such that the works are substantially similar.

The Case will turn on the Expert Opinion Reports

Courts in the Ninth Circuit will determine the reliability of a musicologist’s expert report by considering the way in which the expert analyzes the similarities and differences between songs. Courts may find a report less credible if the musicologist highlights the few similarities and downplays the many differences between two songs.[54] Courts are likely to find an expert’s report more credible if the expert explains his or her methodology.[55] However, courts will not require that a musical expert also be a legal expert, and will not derive legal meaning from an expert’s use of the terms “musical idea” or “idea” within the report.[56]

In their counterclaims, Frankie and Nona Gaye quoted several leading music critics from The New York Times, Vice, Rolling Stone, and Bloomberg Businessweek who remarked on the similarities between Thicke’s hit and Gaye’s song.[57] Gaye’s family asserts that the similarities between the two songs “are the result of many of the same creative choices…, far surpassing the similarities that might result from attempts to evoke an ‘era’ of music or a shared genre.”[58]

Gaye’s family further included an expert report by musicologist Judith Finell, which points to multiple parallels in the two songs. According to the report, “Blurred Lines” contains “a constellation of at least eight substantially similar features” with Gaye’s “Got to Give It Up”: (1) the signature phrase; (2) hooks; (3) hooks with backup vocals; (4) the core theme in “Blurred Lines” and the backup hook in “Got to Give It Up”; (5) backup hooks; (6) bass melodies; (7) keyboard parts; and (8) unusual percussion choices.[59] Additionally, according to the report, both songs share “departures from convention such as the unusual cowbell instrumentation, omission of guitar and use of male falsetto.”[60] The Finell report did not comment as to the similarity between Thicke’s “Love After War” and Gaye’s “After the Dance.”

Other expert opinions contradict Finell’s report. In a statement to Hollywood Reporter, Thicke’s attorney made reference to other expert opinions of three musicologists as well as EMI’s musicologists to support that the Gaye family’s claims are baseless.[61] Those musicologists apparently opined that “[t]he genres of the songs are the same but the notes are different,” supporting Thicke’s allegation that no infringement has occurred.[62]

Conclusion

Is “Blurred Lines” a product of inspiration or is it a derivative of Gaye’s song? With muddled precedent in the Ninth Circuit, the Court will need to address this difficult question, and will undoubtedly rely on the opinions of musical experts. Writing something “with that groove,” or consistent with the sounds of a particular genre, will likely fall closer to a product of “inspiration.” That is, any similarities between the songs could be due to elements that are naturally associated when composing a song in a particular style or genre of music.[63] On the other hand, if the Court finds that “Blurred Lines” and “Love After War” share a protectable combination of unprotectable elements with “Got to Give It Up” and “After the Dance,” infringement may be found.

Whether Thicke’s “Blurred Lines” and “Love After War” are a product of inspiration or a derivative of Gaye’s work will depend on the evidence that is presented to the fact-finder in this case. The evidence will inevitably be supported by contradictory expert reports from both sides, which will make this an interesting case to follow. Stay tuned for more updates.

[1] Interestingly, Gaye’s Family allegedly declined to accept Thicke’s six-figure settlement offer. See Alex Pharm, Marvin Gaye’s Family Rejected Robin Thicke’s Six-Figure Offer, Billboard.com (Aug. 23 2013; 10:30 AM), http://www.billboard.com/articles/news/5672505/marvin-gayes-family-rejected-robin-thickes-six-figure-offer.

[2] Defendants’ Frankie Christian Gaye and Nona Marvisa Gaye First Amended Counterclaims at ¶¶ 4–9, Williams v. Bridgeport Music, Inc., No. 13-06004 (C.D. Cal. Oct. 30, 2013) [hereinafter “Counterclaim”].

[3] For our previous analysis of this case, see Emily Miao & Nicole E. Grimm, The Blurred Lines of What Constitutes Copyright Infringement of Music: Robin Thicke v. Marvin Gaye’s Estate, 20 Westlaw J. Intellectual Prop. 1 (2013) (originally published in the Fall 2013 edition of MBHB’s snippets).

[4] Complaint for Declaratory Relief, Williams v. Bridgeport Music, Inc., No. 13-06004 (C.D. Cal. Aug. 15, 2013) [hereinafter “Complaint”].

[5] Id. at ¶¶ 15, 20.

[6] Id. at ¶ 1.

[7] Id. at ¶ 2.

[8] Counterclaim at ¶¶ 34, 51.

[9] See Counterclaim at ¶ 8; Defendant Marvin Gaye III’s Counterclaim; Demand for Trial of Causes by Jury at ¶ 5, Williams v. Bridgeport Music, Inc., No. 13-06004 (C.D. Cal. Nov. 19, 2013) [hereinafter “Counterclaim Marvin Gaye III”].

[10] Counterclaim at ¶ 58.

[11] Thicke, William, Harris, Stark Trak Entertainment (“Star Trak”), Interscope Records, UMG Recordings, Inc. (“Universal)”, and Universal Music Distribution (“UMD”), collectively “Blurred Lines Defendants,” were sued for copyright infringement of “Got to Give It Up.” See Counterclaim at Count I. Thicke, Paula Maxine Patton, individually and d/b/a/ Haddington Music, Star Trak, Geffen Records, Universal, and UMD, collectively “Love After War Defendants” were sued for copyright infringement of “After the Dance.” See Counterclaim at Count II.

[12] Counterclaim at ¶ 79.

[13] Counterclaim at ¶ 99–100. Marvin Gaye III also filed an answer to Thicke’s complaint on November 19, 2013. See Defendant Marvin Gaye III’s Answer and Affirmative Defenses to Plaintiffs’ Complaint; Jury Demand, Williams v. Bridgeport Music, Inc., No. 13-06004 (C.D. Cal. Nov. 19, 2013).

[14] See Counterclaim at ¶ 60; see also Counterclaim Marvin Gaye III at ¶ 18.

[15] Counterclaim at ¶¶ 121–39.

[16] Although the Gaye family holds the rights to the two Gaye songs in question, EMI apparently controls the administration and protection of their copyrights. Counterclaim at ¶ 9. EMI is also a co-publisher of Williams’s work and thus co-owns “Blurred Lines.” See Eriq Gardner, Marvin Gaye’s Family Sues EMI Over Robin Thicke’s ‘Blurred Lines,’” Blillboard.com (Oct. 30, 2013; 3:25 PM), http://www.billboard.com/articles/news/5770731/marvin-gayes-family-sues-emi-over-robin-thickes-blurred-lines. Sony-ATV is half-owned by Michael Jackson’s estate. See Alan Duke, Marvin Gaye Heirs Sue ‘Blurred Lines’ Artists, CNN.Com (Nov. 1, 2013; 11:04 AM), http://www.cnn.com/2013/10/31/showbiz/blurred-lines-lawsuit/.

[17] Frankie and Nona Gaye allege that, despite EMI’s fiduciary obligation to raise claims against copyright infringers, EMI refused to bring such claims against the “Blurred Lines” composers due to EMI’s business relationship with Williams. Joint Rule 16(b) at p. 4. Of the six causes of action listed in Frankie and Nona Gaye’s Counterclaim, four are directed toward EMI: Count III: breach of covenant of good faith and fair dealing; Count IV: breach of fiduciary duty; Count V: breach of contract; and Count VI: recession. See Counterclaim at ¶¶ 113–139. According to Frankie and Nona Gaye’s counterclaim, EMI’s alleged misconduct includes: (1) failure to identify claims on Gaye’s copyrights; (2) “instructing its litigation attorney to intimidate the Gaye Family from filing an action by antagonistically warning that any lawsuit would be frivolous,” despite admitting that there were similarities between “Got to Give It Up” and “Blurred Lines”; (3) refusing to bring counterclaims after reviewing a musicologist’s report; (4) failing to remain neutral in light of a conflict of interest by showing bias towards the “Blurred Lines” composers; (5) refusing to assign the rights to the Gaye Family to raise counterclaims; and (6) explicitly advising the Gaye Family not to pursue counterclaims. Id. at ¶ 10.

[18] Id.

[19] Id.

[20] Voluntary Notice of Dismissal of Counterclaim Against EMI Third-Party Defendants, Williams v. Bridgeport Music, Inc., No. 13-06004 (C.D. Cal. Jan. 13, 2014).

[21] Counterclaim Marvin Gaye III at ¶ 1.

[22] Id. at ¶¶ 36–53, 54–72.

[23] See Counterclaim at ¶¶ 88-91, 109–112; Counterclaim Marvin Gaye III at ¶¶ 50–53, 68–72.

[24] See Answer to Defendants Frankie Christian Gaye and Nona Marvisa Gaye’s Counterclaims; Request for Jury Trial, Williams v. Bridgeport Music, Inc., No. 13-06004 (C.D. Cal. Dec. 13, 2013); Answer to Defendant Marvin Gaye III’s Counterclaims; Request for Jury Trial, Williams v. Bridgeport Music, Inc., No. 13-06004 (C.D. Cal. Dec. 16, 2013).

[25] Joint Rule 16(b) Report at p. 2 n.1, Williams v. Bridgeport Music, Inc., No. 13-06004 (C.D. Cal. Dec. 6, 2013).

[26] Joint Rule 16(b) Report at p. 12, Exhibit A, Williams v. Bridgeport Music, Inc., No. 13-06004 (C.D. Cal. Dec. 6, 2013).

[27] See Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991).

[28] See Straughter v. Raymond, No. CV 08-2170 CAS, 2011 WL 3651350, at *8 (C.D. Cal. Aug. 19, 2011).

[29] See Swirsky v. Carey, 376 F.3d 841, 844 (9th Cir. 2004).

[30] See Jason v. Fonda, 526 F. Supp. 774, 776 (C.D. Cal. 1981), aff'd, 698 F.2d 966 (9th Cir. 1982).

[31] See, e.g. Acuff-Rose Music, Inc. v. Jostens, Inc., 988 F. Supp. 289, 293 (S.D.N.Y. 1997), aff'd, 155 F.3d 140 (2d Cir. 1998) (finding a reasonable opportunity of access by the defendant due to evidence that the plaintiff’s song was ranked as a top five country hit at the time the defendant composed the song, showing that the defendant had “ample opportunity” to view the plaintiff’s lyrics).

[32] See Straughter, 2011 WL 3651350, at *13.

[33]Id.

[34] See Range Road Music, Inc. v. East Coast Foods, Inc., 668 F.3d 1148, 1154 (9th Cir. 2012).

[35] Straughter, 2011 WL 3651350, at *13.

[36] See Swirsky, 376 F.3d at 845.

[37] See Three Boys Music Corp. v. Bolton, 212 F.3d 477, 485 (9th Cir. 2000).

[38] See Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir. 1996) (“[T]he subjective ‘intrinsic test’ asks whether an ‘ordinary, reasonable observer’ would find a substantial similarity of expression of the shared idea.”).

[39] Straughter, 2011 WL 3651350, at *13.

[40] See Swirsky, 376 F.3d at 848 (internal citations omitted).

[41] In French, the saying Scène à faire refers to “scene to be made” or “scene that must be done.” See Swirsky, 376 F.3d at 849–50.

[42] Id. at 850.

[43] Smith, 84 F.3d at 1219.

[44] Swirsky, 376 F.3d at 850.

[45] Id.

[46] See Three Boys Music Corp., 212 F.3d at 485 (upholding the jury’s finding of copyright infringement because the two songs both had a combination of five unprotectable musical elements). Other circuits agree with the Ninth Circuit on this rule. See, e.g., Hobbs v. John, 722 F.3d 1089, 1093 (7th Cir. 2013) (“[T]here is a wealth of authority recognizing that, in certain situations, a unique arrangement of individually unprotectable elements can form an original expression entitled to copyright protection.”).

[47] Id. at 485.

[48] Complaint at ¶ 2.

[49] See Stelios Phili, Robin Thicke on That Banned Video, Collaborating with 2 Chainz and Kendrick Lamar, and His New Film, GQ.com (May 7, 2013; 1:20 AM), 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; see also Counterclaim at ¶5. But Thicke may have recanted this statement after initiating the lawsuit when he responded to a TMZ reporter:

“Q: So, so, when you, when you wrote [‘Blurred Lines’], do you like think of Marvin Gaye like when you write the music?

A: No.”

See Marvin Gaye Family Sues Robin Thi title="">[50] See Three Boys Music. Corp., 212 F.3d at 484 (in upholding the district court’s finding of Bolton’s subconscious copying due to the Isley Brother’s widely disseminated music, noted that “Bolton confessed to being a huge fan of the Isley Brothers and a collector of their music.”).

[51] See Baxter v. MCA, Inc., 812 F.2d 421, 425 (9th Cir. 1987) (“Even if a copied portion be relatively small in proportion to the entire work, if qualitatively important, the finder of fact may properly find substantial similarity.”); Elsmere Music, Inc. v. Nat'l Broad. Co., Inc., 482 F. Supp. 741, 744 (S.D.N.Y. 1980), aff'd sub nom., 623 F.2d 252 (2d Cir. 1980) (finding that copying four notes, which were considered a significant part of the musical composition, was “capable of rising to the level of copyright infringement”).

[52] See Swirsky, 376 F.3d at 845 (“Because the requirement is one of substantial similarity to protected elements of the copyrighted work, it is essential to distinguish between the protected and unprotected material in a plaintiff’s work.”).

[53] See id.

[54] See Straughter, 2011 WL 3651350, at *16 (“The Ninth Circuit has held that ‘lists of similarities are inherently subjective and unreliable, especially where they emphasize random similarities scattered throughout the works.’”) (quoting Olson v. Nat’l Broad. Co., 855 F.2d 1446, 1450 (9th Cir.1988)).

[55] See Swirsky, 376 F.3d at 853.

[56] See Straughter, 2011 WL 3651350, at *15 (“The Ninth Circuit has held that “a musicologist is not an expert on what the term ‘idea’ means under the copyright laws. Labeling something as a ‘musical idea’ does not necessarily bear on whether it is also an ‘idea’ under the copyright laws and unprotectable for that reason.”).

[57] Counterclaim at ¶ 7. The Counterclaim cites to these interviews as evidence to support the Defendants’ position that the ordinary observer would appreciate and recognize that composition elements of “Got to Give It Up” were copied into “Blurred Lines.” Id.

[58] Counterclaim at ¶ 37.

[59] Counterclaim, Expert report at ¶ 43.

[60] Id.

[61] Eriq Gardner, ‘Blurred Lines’ Lawsuit: Marvin Gave [sic] Family Now Claims Robin Thicke Stoke Two Songs (Exclusive), Hollywoodreporter.com (Oct. 30, 2013; 10:56 AM), http://www.hollywoodreporter.com/thr-esq/blurred-lines-lawsuit-marvin-gaye-651427.

[62] Id.

[63] See Swirsky, 376 F.3d at 845

 

Topics:  Copyright, Copyright Infringement, Music, Music Industry, Patents, Settlement

Published In: Art, Entertainment & Sports Updates, Civil Procedure Updates, Intellectual Property Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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