Robin Thicke, Marvin Gaye, and the Blurred Line Between Inspiration and Infringement

more+
less-

Robin Thicke’s Blurred Lines has been a pop-music juggernaut: the year’s best selling song in the United States and the UK is entering its 11th week at the top of Billboard’s Hot 100 chart. When it was initially released many noted that it was reminiscent of Marvin Gaye’s hit Got to Give It Up. And Thicke admitted that he intended for Blurred Lines to be reminiscent of Gaye’s 1977 hit, noting to Yahoo that he was “[d]efinitely inspired by that, yeah. All of his music… he’s one of my idols.”

Listeners discerned similarities between the songs, particularly with respect to the beat, vocal and music layering and vocal delivery. Apparently that included the family of Marvin Gaye.

Blurred Lines seems to flourish with controversy. When it was released in March, a provocative video featuring topless models transformed “Blurred Lines” from a fun song into a pop-culture attraction. And when some attacked the song’s lyrics as legitimizing rape (according to Thicke, the lines in question have nothing to do with rape), Blurred Lines became a national conversation piece.

Add to the list of controversies a lawsuit filed by Thicke, Pharrell Williams and T.I. (real name Clifford Harris, Jr.).  According to the Complaint filed by Thicke, T.I and Pharrell, Gaye’s family apparently demanded a royalty from Thicke, Pharrell and T.I., which they refused to pay. After reaching an impasse, Thicke and his co-authors sued Gaye’s family in federal district court in California, seeking a declaratory judgment that Blurred Lines does not infringe upon Gaye’s copyrights. Thicke, Pharrell and T.I. also have sued Bridgeport Music, as apparently Bridgeport claimed that Blurred Lines sampled the song Sexy Ways written by George Clinton and Grace Cook and performed by Funkadelic.

George Clinton, the writer of Sexy Ways has weighed in here, tweating that he does not think that Blurred Lines samples Sexy Ways—taking issue with Bridgeport executive Armen Boladian. From Twitter:

But it does not seem as clear with Gaye’s Gotta Give It Up.  Based on the wording used in the complaint and Thicke’s public statements it is evident that Thicke and the others were inspired by this particular song. Assuming the two sides do not reach an agreement, the court here will be delving into the thorny issue of determining when “inspiration” crosses the line into copyright infringement.

Before deciding whether this is infringement or inspiration, the court will need to determine what is actually protected by the copyright to Got To Give It Up. Copyrights protect an artist’s expression of ideas, but not the ideas themseleves. Thus the copyright covering Got To Give It Up does not protect those portions of the song that are common; it protects only protects those parts of the song that are original to Marvin Gaye. This is a two part inquiry, and the first part is answering the question: “What are the protected original, expressive elements of Got To Give It Up and what are the non-protected elements?” In other words, what in Gaye’s song makes the work unique to him? Obviously the fact that he sang a song in a high voice and with a relatively fast beat is not original. However, the words of the song, the percussion actually used and the other portions of the melody and harmony—and certainly the combination of all of the elements—are original to Marvin Gaye. Those are exactly the types of elements that express Marvin Gaye’s creativity and thoughts and that convey a message to any listener of Got To Give It Up. These are elements specifically created by Gaye intended to evoke emotion and interest. As such, these are all elements that the court will likely deem original to Gaye and thus protectable.

The second inquiry is whether Blurred Lines substantially appropriates the protected elements of Got To Give It Up, such that those works are substantially similar. This is an issue of fact, and here it is not one that is easy to assess. Thicke’s complaint gives his version: “The intent in producing Blurred Lines was to evoke an era.” The complaint continues: “[t]here are no similarities between [Blurred Lines] and [Got To Give It Up], other than commonplace musical elements.” (emphasis added). Obviously, the layered vocal presentation and the beat of the two songs are similar. But it appears that Thicke, T.I. and Pharrell will argue that these are common elements and thatBlurred Lines is not a copy, but an homage to Gaye and music of the 1970s. The law in this area—especially for music—remains somewhat vague and requires a fact intensive inquiry. Did Thicke, T.I. and Pharrell cross the line separating inspiration and infringement?  Ironically, that line remains blurry.