transparentMany of you may be familiar with the pop hit “Blurred Lines” by Robin Thicke, Clifford Harris, more popularly known as T.I., and Pharrell Williams (the “Composers”).  If it does not sound familiar by title, perhaps you may recall it for its controversial nudity laden music video, or the fact that it was the song performed by Thicke and Miley Cyrus at the MTV Video Music Awards in 2013 when Miley’s scandalous conduct went viral and shocked the world—including Thicke’s spouse.  However, what you may be less familiar with is the fact that the heirs of Motown great Marvin Gaye (the “Heirs”) have been threatening to sue the Composers since at least early 2013.  The Heirs claim that “Blurred Lines” infringes their copyright in the Marvin Gaye song “Got to Give it Up.”  However, in August 2013, after months of discussion on the issue, the Composers opted to file an action for declaratory relief in the United States District Court for the Central District of California, seeking a judgment that “Blurred Lines” does not infringe “Got to Give it Up.”  The justification there was likely that sometimes the best defense is a strong offense.  The Heirs then filed a counterclaim for copyright infringement alleging that “Blurred” Lines” does in fact infringe “Got to Give it Up” and also that another song by Robin Thicke and Paula Patton—“Love After War”—infringes Marvin Gaye’s song “After the Dance.”  The trial on this matter began on February 24, 2015 and is currently ongoing.

In order to establish a claim for copyright infringement, a party must show that (1) the plaintiff owns a valid copyright in the work that allegedly has been infringed; and (2) the infringing party copied protected elements of the plaintiff’s work. “Because direct evidence of copying is not available in most cases, plaintiff may establish copying by showing that defendant had access to plaintiff’s work and that the two works are ‘substantially similar’ in idea and in expression of the idea.”  Smith v. Jackson, 84 F.3d 1213, 1219 (9th Cir. 1996).  In determining whether two works are substantially similar, a two-part analysis is employed.  Swirsky v. Carey, 376 F.2d 841, 845 (9th Cir. 2004). This includes an objective extrinsic test and a subject intrinsic test.  Id.  The extrinsic test considers whether the two works share a similarity of ideas and expression of a work and expert testimony.  Id.  This analysis requires breaking the works down into their constituent elements and comparing those elements for proof of copying as measured by “substantial similarity.”  In performing this analysis it is vital to remember that substantial similarity only considers similarity in expression—not ideas.  Such elements are not protectable under applicable copyright law.  Where the party cannot establish extrinsic similarity, the claim fails because a jury cannot find substantial similarity without evidence on both the extrinsic and intrinsic tests.  Sony Pictures, 156 F.Supp.2d at 1157.  However, if the extrinsic test is satisfied, then a jury is required to make a determination on the intrinsic test.  The intrinsic test is an examination of an ordinary person’s subjective impression of the similarities between the two works.  In order to establish infringement, both tests must be satisfied.

The Heirs base their claim on eight alleged similarities between “Got to Give It Up” and “Blurred Lines.”  However, the Composers have taken the position that these alleged similarities are based on commonplace elements of Marvin Gaye’s sound recording of “Got to Give It Up” that were not included in the sheet music he submitted to the Copyright Office in 1977 to register his copyright, and thus they are not part of the copyrighted composition that the Heirs claim to own.  Sound recordings and their underlying musical compositions are separate works with distinct copyrights.  Newton v. Diamond, 204 F.Supp.2d 1244, 1248-1249 (C.D. Cal. 2002).  To be clear, sound recording refers to musical elements not contained in the composition such as the sounds of the instruments, or other recording elements including backup vocals and other sound effects.  The Composers claim that the Heirs do not own the Marvin Gaye sound recording—only the composition.  Thus, the gist of the Composers’ argument is that there are no “substantial similarities” between the songs because the eight alleged similarities consist of unprotectable, commonplace ideas allegedly found in both songs—such as the idea of using a cowbell or the idea of using backup vocals.  These are not compositional elements, but rather elements in Marvin Gaye’s sound recording.  Copyright law only protects original expression—specific notes, rhythms, and harmonies—not mere ideas, such as the idea to use the aforementioned elements.  Thus, Composers take the position that no such expression is remotely similar.  Specifically, they claim there is no similarity in the melodies, the harmonies, the sequence of chords, the rhythms, the structures, or the lyrics.  Pharrell Williams testified in support of this position earlier today when he took the stand.  When the Heirs’ attorney asked whether he effectively captured the feel of the Marvin Gaye era, Pharrell responded, “[F]eel.  Not infringed [sic].”

The Composers believe that the only reason the Heirs claim infringement is because Composers made certain comments in promoting their record about being inspired by Marvin Gaye.  According to the Composers, the Heirs disregarded the fact that the two songs had no similarity in actual notes or phrases because they saw a potential opportunity to get paid.  With respect to “Love After War” there is only one note in common with “After The Dance.”  Thus, Composers argue that this second infringement claim is even more tenuous.

In contrast to the Composers’ position, the Heirs claim the following similarities:

  • Signature phrase in the main vocal melodies;
  • Hooks with similar notes;
  • Hooks with back up vocals;
  • The core theme in “Blurred Lines” and backup hook in “Got To Give It Up” are similar.
  • Similar back up hooks;
  • Bass melodies have similar rhythmic elements;
  • Keyboard similarities;
  • Unusual percussion sounds, including cowbell.

Obviously, the Heirs take a different position with respect to whether the foregoing similarities constitute protectable expression or mere ideas.  The Heirs also contend that the aforementioned elements taken as a whole constitute a protectable interest.  It is true that a combination of unprotectable elements may qualify for copyright protection, but this is only true where those elements are “numerous enough and their election and arrangement original enough that their combination constitutes an original work of authorship.”  Satava v. Lowry, 323 F.3d 801, 811 (9th Cir. 2003).  Composers contend that the elements are not so numerous as to constitute an original work, but they disagree.  Furthermore, it should be noted that such compositions are only entitled to “thin protection” under copyright law.  This means that any copying would have to be “virtually identical.”

Composers filed a motion for summary judgment on the grounds stated above, but the motion was denied because both sides proffered their respective expert’s analyses which provided indicia of a sufficient disagreement concerning substantial similarity to present a genuine issue of material fact.  The Court found that the experts were in conflict with respect to the similarity of the signature phrases, hooks, bass lines, keyboard chords, harmonic structures, and vocal melodies.  As such, the matter could not be decided as a matter of law.  Because the matter could not be disposed of through summary judgment, the case proceeded to trial where it recently came out that Blurred Lines made $16,675,690 in profits.  This essentially begs the question—will any or all of the Composers have to cough up any of that money to the Heirs?  The answer to that question lies with the jury.