Pop artists Robin Thicke and Pharrell Williams’ “Blurred Lines” song was the most popular single in 2013, topping the U.S. and international music charts.[1] The song has sold over 6 million copies and its accompanying video has been played hundreds of millions of times on YouTube.[2] The song has also embroiled Thicke and Williams and others in a contentious copyright lawsuit against Marvin Gaye’s children. In a recent verdict, a California federal jury found that Thicke and Williams’ smash hit copied Marvin Gaye’s 1977 song “Got To Give It Up” and awarded Marvin Gaye’s children $7.39 million in damages for copyright infringement.[3] In a follow-up to our earlier articles,[4] we discuss some of the issues raised in the case and what impact, if any, the decision can have on musicians who try to emulate a particular genre or another artist’s sound.

Thicke’s Pre-emptive Strike in Initiating the Lawsuit Backfires

After receiving threats of legal action from the Gaye family, accusing Thicke and Williams of infringing Marvin Gaye’s song, Thicke, together with Williams and Clifford Harris, pre-emptively filed a lawsuit on August 15, 2013, against the Gaye family, seeking a declaratory judgment action in the U.S. District Court for the Central District of California that “Blurred Lines” did not infringe Gaye’s “Got to Give It Up.”[5] Gaye’s children, who own the copyrights on their father’s composition, countersued on October 30, 2013, also naming defendants UMG Recordings, Inc. and several of its subsidiaries, including Interscope Records, all of which allegedly played a part in manufacturing and distributing “Blurred Lines.”[6] On October 30, 2014, the U.S. district judge denied Thicke and Williams’ Motion for Summary Judgment, however in doing so, the judge found that the sheet music of Gaye’s “Got to Give It Up” and “After the Dance” that were deposited with the U.S. Copyright Office defined the scope of the copyrighted compositions, not the sound recordings.[7]

On January 26, 2015, during the parties’ final pretrial conference and hearing on the motions in limine, the judge granted Thicke and Williams’ motion to exclude the Gaye Parties from playing the sound recording of “Got to Give It Up” to the jury during trial.[8] The judge was concerned that Gaye’s voice, backup vocals, and some of the percussion, which are elements that are not covered by the copyrighted sheet music, could sway the jury.[9] During the trial, the jurors repeatedly heard the “Blurred Lines” song and saw portions of its associated music video but did not hear Gaye’s recorded version of “Got To Give It Up.”[10] Rather, the jury heard a version constructed from the sheet music which lacked many of the musical elements of the original song, including Gaye’s voice.[11]

After a seven-day trial and nearly two days of deliberation, the jury decided that “Blurred Lines” and “Got To Give It Up” were substantially similar, and awarded the Gaye Parties $4 million in actual damages and $3.38 million in profits attributable to Thicke and Williams’ infringement of “Got To Give It Up.”[12] The jury also found that Clifford Harris, Jr., a co-owner of 13% of the musical composition copyright in “Blurred Lines,” and the Interscope Parties did not infringe “Got To Give It Up.”[13] Although the jury did not find that Thicke and Williams’ infringement of “Got To Give It Up” was willful, they found that the infringement was not innocent.[14] Regarding Gaye’s other song in dispute, “After the Dance,” the jury did not find by a preponderance of the evidence that the Thicke Parties infringed the copyright in the musical composition in their song, “Love After War.”[15]

Following the jury verdict, the Gaye Parties filed a Motion for Injunctive Relief to immediately prevent the Plaintiffs from “reproducing, distributing, performing, displaying, and preparing derivative works” of “Blurred Lines” and “impound any and all infringing articles containing the composition ‘Blurred Lines.’”[16] Additionally, the Gaye Parties filed a Motion to correct the Jury’s Verdict requesting that the court impose liability for direct copyright infringement of the composition copyright of “Got To Give It Up” on Clifford Harris, Jr. and the Interscope Parties.[17] Thicke and Williams moved to strike both of the Gaye Parties’ motions, arguing that the motions were procedurally improper.[18]

To resolve the remaining issues between the parties, and in accordance with the court’s orders, the parties have agreed to a schedule for filing motions that will carry this case on through at least July 2015.[19] As the Thicke and Williams made clear in their motion to strike the Gaye Parties’ motions, “[t]his case is far from over” and “[i]t is merely entering a new phase.”[20]

Thicke Succeeds in Limiting the Jury to Copyrighted Sheet Music, not the Gaye sound Recording

Prior to the jury’s verdict, Thicke and Williams achieved two seemingly big wins for their case – the judge limiting the musical compositions of “Got To Give It Up” and “After the War” to the sheet music, and preventing the Gaye Parties’ from playing the sound recordings to these songs during trial. However, despite these advantages, the jury still found Thicke and Williams liable for copyright infringement of the composition of “Got To Give It Up.”

Interestingly, Marvin Gaye did not write the sheet music of his songs and did not “fluently read sheet music.”[21] When the musical compositions for “Got to Give It Up” and “After the Dance” were registered with the U.S. Copyright Office, Gaye deposited sheet music “representing the lyrics and some of the melodic, harmonic, and rhythmic features that appear in the recorded work.”[22]

The Gaye Family relied on the Ninth Circuit case, Three Boys Music Corp. v. Bolton to argue that “the factfinder in a music copyright infringement action may consider elements that appear in the recorded version of the song as part of the ‘composition’ even if they do not appear in sheet music deposited with the Copyright Office in accordance with the 1909 Act.”[23] In Three Boys Music Corp., the appellants argued that the district court did not have jurisdiction to hear the case because the Isley Brothers (holders of the copyrighted song in this case) did not register a complete copy of the song with the Copyright Office and that the sheet music did not “include the majority of the musical elements that were part of the infringement claim.”[24] The Ninth Circuit acknowledged that “[a]lthough the 1909 Copyright Act requires the owner to deposit a ‘complete copy’ of the work with the copyright office, our definition of a ‘complete copy’ is broad and deferential: ‘Absent intent to defraud and prejudice, inaccuracies in copyright registrations do not bar actions for infringement.’”[25] However, the court did not find the Gaye Parties’ reading of Three Boys Music Corp. to be convincing because Three Boys Music Corp., according to the court, involved subject matter jurisdiction to hear the case and “not the material actually protected by the copyright.”[26]

In finding that Gaye’s copyrighted compositions were limited to the sheet music, the court looked to Bridgeport Music, Inc. v. UMG Recordings, Inc., a Sixth Circuit case. In UMG Recordings, the appellants argued that the jury should not have been permitted to consider elements of the sound recordings because they were not part of the sheet music.[27] However, the Sixth Circuit found that the sheet music for the composition in dispute was created “long after the song was composed” and “[u]ncontroverted testimony at trial established that the song was composed and recorded in the studio simultaneously, and, therefore, that the composition was embedded in the sound recording.”[28]

The court distinguished UMG Recordings, which was brought under the Copyright Act of 1976, by noting that Marvin Gaye’s compositions could not have been embedded in the sound recording under the Copyright Act of 1909, which governed this case, because “a sound recording is not a publication under the earlier legislation.”[29] Under the 1909 Act, “publication of a work with proper notice was necessary to obtain statutory copyright protection.”[30] The 1909 Act applies to cases, such as this one, in which the creation and publication of a work occurred before January 1, 1978.

While the court acknowledged that “the scope of [the Gaye Parties’] copyrights is not, as a matter of law, limited to the lead sheets deposited with the Copyright Office in 1976 and 1977,” the court also stated that the Gaye Parties “do not offer evidence that the copyright compositions encompass subject matter beyond the lead sheets.”[31] Ultimately, the court relied on a combination of the law governing the case (the 1909 Copyright Act) and the Defendants’ apparent lack of evidence that the composition should comprise elements not found in the sheet music to limit its infringement analysis to the elements in the sheet music. However, even with this narrower assessment of the Defendants’ compositions, the court still found that genuine issues of fact existed concerning substantial similarity so as to deny summary judgment to the Thicke Parties.

The Jury relied Heavily on the Gaye family’s Expert Testimony

As discussed previously, the case would turn on the persuasiveness of contradictory reports and testimony of the expert musicologists retained by the parties. Indeed, after the verdict issued, one of the jurors admitted that the jury had put significant weight on the Gaye’s musicologist expert witness, Judith Finell, who analyzed the songs and pointed to elements from the Gaye’s song that were used in Blurred lines.[32] And, the “sufficient disagreement” between the parties’ experts regarding the substantial similarity of “Blurred Lines” and “Got To Give It Up” convinced the court that a genuine issue of material fact existed so as to deny summary judgement.[33]

According to the Finell expert report, Blurred Lines included “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.[34] Additionally, the report pointed out that both songs share “departures from convention such as the unusual cowbell instrumentation, omission of guitar and use of male falsetto.”[35] Thicke and Williams, however, noted that the musical elements that Thicke and Williams are accused of copying were not reflected in the copyrighted sheet music.[36]

The Gaye family also retained a second expert, Ingrid Monson, whose expert report paralleled the Finell report but offered some additional analysis of the similarities and differences between the two songs.[37] The opinion of the second expert may have been helpful to the jury in further supporting Finell’s position.

Thicke and Williams retained musicologist Sandy Wilbur whose expert report also included a comparative analysis of the “Blurred Lines” and “Got to Give It Up” and as expected, “found no substantial similarity between the melodies, rhythms, harmonies, structures and lyrics” of the two songs.[38] The Wilbur expert report focused on the significant differences between the two songs and noted that many of the musical elements that Thicke and Williams were accused of infringing, such as cow bells, percussion sounds, etc., were not present in the copyrighted deposit.[39] Furthermore, the Wilbur expert report asserted that many of the musical elements are common elements used in many songs.[40] While Ms. Wilbur concluded that the songs were not substantially similar, her opinion was repeatedly attacked during trial.

In reaching its decision, the jury was apparently more persuaded by the evidence of the Finell report and Ms. Finell’s testimony. Thicke’s contradictory testimony and admissions regarding the creation of “Blurred Lines” during the trial did not help his case, casting him in an unfavorable light before the jury and no doubt influencing the jury’s verdict.[41]

Conclusion

Is Thicke and Williams’ “Blurred Lines” a product of inspiration or a derivative of Gaye’s work? The jury decided the latter. Despite Thicke and Williams’ significant success in forcing the jury to only consider the copyrighted sheet music, which lacked many of the musical elements that Thicke and Williams were accused of infringing, and preventing the jury from hearing the sound recording of Gaye’s music, the jury decided against them, relying heavily on the opinions of musical experts as expected.[42] The jury found that “Blurred Lines” copied a protectable combination of elements within “Got to Give It Up,” and that copyright infringement had occurred. Whether this case could have been decided differently had Thicke not contradicted himself during trial is debatable. However, this decision may have a chilling effect on musicians who try to emulate a particular genre or pay homage to another artist’s sound.

Perhaps the key lesson of this case is for musicians interested in emulating a particular genre or artist’s sound to seriously consider taking a license early on or hire very good experts in anticipation of litigation. Subsequent to the decision, both sides have filed motions, indicating that the legal drama is not over yet.

[42] See Miao & Grimm 2014, supra note 4.