Are Similar-Sounding Songs Copyright Infringement?

The “Blurred Lines” Copyright Lawsuit Heads to Trial

marvingaye1973gettyIn a rare move these days, the trial between Robin Thicke, Pharrell Williams, Clifford Harris Jr. (better known as rapper “T.I.”) and Marvin Gaye’s family has begun. Marvin Gaye’s children, Nona, Frankie and Marvin III allege in the copyright infringement case that the song “Blurred Lines” directly infringes on Gaye’s 1977 hit song, “Got to Give It Up.” (In case you have no idea what either of these songs sound like, check out this YouTube mash-up). Interestingly, it was Thicke, Williams and Harris who brought the preemptive lawsuit to seek declaratory relief in August 2013 after they were contacted by Gaye’s family of the allegations of copyright infringement. The declaratory relief they sought was for a ruling that the two songs were “starkly different.”

The case ended up in trial because late last year, the judge in the case ruled against Thicke, Williams and Harris when he denied their motion for summary judgment. The judged ruled that Gaye’s family have “made sufficient showing that elements of Blurred Lines may be substantially similar to protected, original elements of ‘Got to Give It Up.’” Specifically, the judge highlighted the similarities between the two songs’ phrases, hooks, baselines, keyboard chords, harmonic structures and vocal melodies.

robin-thicke-revient-avec-pharrell-et-t-iCopyright infringement is the act of violating the exclusive rights under the federal Copyright Act of a copyright owner. In order to have a valid copyright claim, one must 1) actually have a valid copyright, 2) the alleged infringer must have had access to the copyrighted work, and 3) the duplication must not fall into one of the exceptions. Exceptions include fair use, face-to-face instruction, and virtual instruction. After actual copying is established, then the person claiming infringement must prove that the alleged infringer “took from plaintiff’s works so much of what is pleasing to the ears of lay listeners, who comprise the audience for whom such…music is composed, that defendant wrongfully appropriated something which belongs to the [original owner].” Repp v. Webber, 132 F.3d 882, 889 (2d. Cir. 1997). In other words, the main question is, is the work substantially similar? That’s for the jury to decide.

Elements of a valid copyright claim:

1. actually have a valid copyright,

2. the alleged infringer must have had access to the copyrighted work, and

3. the duplication must not fall into one of the exceptions.

Last year, Gaye’s family settled with EMI April, which is owned by Sony/ATV, over the family’s allegations that EMI had breached a contract and its fiduciary duty by not protecting Gaye’s work, failing to stay neutral during the dispute and attempting to turn the public against Gaye’s family, as well as accusing the label of planning a false story that they turned down a large settlement in an attempt to make the family seem unreasonable. The terms of that settlement were confidential.

The attorney for the Gaye family claimed that “Got to Give It Up” was used as a “blueprint” for “Blurred Lines” and there is no “randomness” with regards to the similarities of the songs. Thicke’s attorney retorted that no one can own a “genre or groove.” All of the songwriters for “Blurred Lines” admitted that they were familiar with Gaye’s hit before they wrote the 2013 hit song.


UPDATE: Marvin Gaye’s family was awarded $7.4 million at the conclusion of the trial. Both Robin Thicke and Pharrell Williams are planning an appeal.

This Article was written by attorney Maureen A. Carlson.

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