Blurred Lines: sound-alike litigation in the music industry

Robin Thicke’s hit, Blurred Lines, has caused controversy not only for its lyrics, but also for its musical provenance after Marvin Gaye’s children alleged that Blurred Lines infringed copyright in Marvin Gaye’s record, Got To Give It Up. Next week will see the culmination of this intriguing copyright dispute, with the trial before the Californian District Court currently scheduled to start next Tuesday, 17 February.

As readers may recall [see here and here], the litigation arose after Pharrell Williams, Robin Thicke and Clifford Harris, Jr., pre-emptively sought declaratory relief that Blurred Lines did not infringe copyright in Gaye’s Got To Give It Up, following accusations by the Gaye family of unlawful similarities between the two works.

The Gaye’s expert musicologist studied the sheet music and sound recordings of the two works and identified eight “substantially similar” features which “surpass the realm of generic coincidence”. The Gayes argued that it was improbable that a third-party work would contain all of these features in a “similar constellation” – and that those similarities in Blurred Lines must therefore be indicative of unlawful copying.

In this case, it was not disputed that Robin Thicke had listened to Gaye’s Got To Give It Up before Blurred Lines – and he perhaps did not help himself when, in an interview with GQ in May 2013, he responded to a question about the origin story behind Blurred Lines,

“Pharrell and I were in the studio and I told him that one of my favorite songs of all time was Marvin Gaye’s Got to Give It Up. I was like, ‘Damn, we should make something like that, something with that groove’.”

Opposable thumbs
would have been helpful...

Blurred Lines is an apt description of that murky threshold between taking lawful creative inspiration from an earlier copyright work and unlawfully misappropriating protected elements from it. This is a particularly pertinent issue for musical works, where creative inspiration is commonly drawn from prior works, often at a subconscious level. [An example of this is the well-known case brought by the Chiffons in relation to George Harrison’s My Sweet Lord, where George Harrison was found guilty of ‘subconscious plagiarism’ – see Bright Tunes Music v. Harrisongs Music 420 F. Supp. 177 (S.D.N.Y. 1976)] 

Furthermore, there is perhaps a greater potential for two musical works to sound similar even though they have been independently created without knowledge of the other. In this regard, a recent study by Noah Askin and Michael Mauskapf [see commentaries here and here] concluded that the key to chart success in the music industry is to create a song which differs, but only very slightly, from the conventional formula of the songs of the same era. The study also suggested that the majority of popular chart songs were deemed to be generally similar when assessed against the study’s criteria of tempo, key, duration, mode and time signature, but also “danceability” (an analysis of beat and rhythm); “valence” (an analysis of the song’s positivity); and “speechiness” (the presence of the spoken word). [However, even where a second work (which sounds similar to the first work) has been created completely independently, in practice, it can prove challenging to prove a negative, namely that the second author was not aware of the first author’s work.]

Another practical challenge raised by sound-alike litigation is in proving ownership and subsistence of copyright, which can be an immensely time-consuming and expensive exercise. For instance, the Gayes hit an evidential stumbling block when they sought to rely on the sound recording of Got To Give It Up which contained certain elements not found in the sheet music (such as the backup vocals, percussion parts, and “the use of party sounds as accompanying sounds”). This was because the sound recording had not been deposited with the Copyright Office, which left open the issue of whether it satisfied the publication and registration requirements under the 1909 Copyright Act.  

Following numerous interim skirmishes and a volte-face by the judge in its recent Order, the Gayes are now required to create an edited version of the sound recording in which all those elements not found in the sheet music (such as percussion and backup vocals) have been removed. It will therefore be an edited sound recording of Got To Give It Up played to the jury and compared against Blurred Lines in the trial scheduled to commence next week. Watch this space.

• Listen to the tracks yourself: a handy YouTube clip where you can compare Blurred Lines against Got to Give it Up [subject to the caveat that this isn’t what the jury will be hearing next week for the reasons explained above]