The estate of the late Marvin Gaye, which own the copyright in the sheet music to the 70’s hit “Got to Give it Up” sued Pharrell Williams and Robin Thicke, the producers and performers of the 2013 hit single “Blurred Lines”, for copyright infringement. This article seeks to examine the reasons for the jury’s decision and the substantive effect of such decision on the music industry.

It is important at the outset to outline the ambit and scope of the case at hand. In copyright infringement matters there are usually many “works” which make up a composite work at the centre of the dispute.

For instance a song is comprised of the sheet music/musical notation, the sound recording and the lyrics. It is not protected as just a song, a  “song” is typically comprised of all the aforementioned works. More importantly most of these various individually recognisable works have different copyright owners. The sound recording is typically owned by the person/entity responsible for arranging the recording (usually the recording company) whilst the sheet music is owned by the first author in this case Marvin Gaye (and by virtue of his death , by his estate).

There is clearly some degree of similarity between these two songs or the dispute would not have found its way through the courts. In fact Williams and Thicke sought a declaratory order as a pre-emptive strike to have the court rule that no infringement had taken place, essentially seeking to discharge the issue. They failed in this regard and the matter thus proceeded to trial.

The crux of the dispute is whether or not Williams and Thicke’s “Blurred lines” copied the sheet musicof Gaye’s “Got to Give it up”? .Gaye’s voice, the backup vocals and much of the percussion was added later and therefore did not form part of the work which the Gaye family could claim title to and rely on (copyright in the backup vocals and percussion was held by recording company which was not a party to the proceedings ) in order to claim copyright  and copyright infringement.

It must be noted at this point that it is necessary in copyright infringement matters to prove actual copying, similarity between the two songs (works) is not sufficient.

Practically what this means is that Gaye’s estate would have to show that Williams and Thicke copied the sheet music from “Got to Give it up”. Therefore only a limited portion of the original song could be relied on as evidence, the rest (i.e. Gaye’s voice, the backup vocals and much of the percussion) becoming extraneous to the legal issue for determination in this particular case.

Ultimately the jury found that Williams and Thicke had copied the sheet music and therefore were ordered to pay $7.4 million as a combination of damages and royalties to Gaye’s estate.

What is worrying is that when only the sheet music from “Got to Give it Up” is compared with “Blurred lines” it is hard to reach the conclusion that “Blurred Lines “ incorporates and copies the sheet music from “Got to Give it Up”. What appears to have happened in reality is that the jury found that Williams and Thicke had copied the feel of the recording of “Got to Give it up”. However this was never the legal issue before the court. There are a number of practical reasons for why this may have happened.

Firstly both songs had been in the media. Unless you were living in a cave somewhere you (including the jurors) would probably have been exposed to both songs in their entirety and not just the song as embodied in the sheet music  , which ought only to have been  compared for purposes of establishing copying. Secondly jurors, unlike trained judicial officers (judges) are not trained to focus on the specific factors relevant to the legal enquiry. It was probably impossible for the jurors to divorce the legally relevant portions from the irrelevant portions of the respective songs when deciding if copying had taken place.

What Williams claimed is that “Got to Give it up” was not in his mind during 1.5 hours it took him to write the song. What he did admit is that he grew up being exposed to the music of Marvin Gaye and more specifically funk style music which Gaye’s sound helped personify. Ultimately Williams conceded that Gaye’s music had influenced his own musical development, and that would explain why there may be some degree of similarity between the feel of the two songs. This assessment would appear to be fair. However a similarity in “feel” between the two songs , as orchestrated and recorded was not what the court was required to decide. It was thus not the legal test that was required in order to determine whether or not the music recorded in the sheet music, had been reproduced.

What is the impact of this decision? Much of the criticism around this judgment appears to suggest (and rightly so) that this may set a precedent to enable copyright owners to sue for copyright infringement where musical influence by one artist over another is apparent.

This is particularly dangerous because completely innovative musical creativity may be impossible to achieve. Invariably musical works which appear to be new and original, transpire on analysis to be variations (albeit ingenious and fresh) of well established melodic, rhythmic, harmonic or contrapuntal themes (or combinations of these themes). Musicians who create music are, in reality, influenced by the works of other creative musicians. This is a natural occurrence and viewed from another perspective, constitutes the musical “culture” or genre in which a creative musician works. Moreover the sound and feel of artists from previous generations, especially prominent and influential artists (who may have defined a genre, or era, of music) will always linger in the conscious of the next generation of artists whom they inspire to create new musical works.

There is a legitimate fear that this judgement may have an impact on future musical creativity and dull down music, as the influence of other artists is often vital to the development of new sounds and musical genres.

The policy basis for offering copyright protection and creating statutory monopolies in such works is to incentivise creativity i.e. that  artists can be guaranteed financial reward for their creative skill and effort expended in creating a new and original work. It has never been a policy objective of copyright law to stifle creativity and create monopolies in favour of an individual artist over an entire genre which they may have personified but not exclusively developed.

The precedent set here is a dangerous one, which will likely be the subject of an appeal.

Publication Name: Gaye v Williams and Thicke – Blurring the Lines of Creativity in Music:
Date: May, 2015
Practice Area: Copyright