March 15, 2015 Practice Points

Blurring the Lines Between Infringement and Inspiration

By Sathima Jones

On Tuesday, March 10, 2015, a Federal Jury ordered singer Robin Thicke and singer/producer Pharrell Williams to pay $7.4 million to the family of Marvin Gaye for the infringement of their 2013 hit song "Blurred Lines" on the copyright of Marvin Gaye's 1977 hit "Got to Give It Up."

The lawsuit has drawn a substantial amount of attention due to both the fame of the parties and the relative rarity with which copyright infringement cases are publicized or even go to trial. Copyright infringement cases in popular culture generally settle in order to avoid embarrassment of the parties and negative publicity associations with the artists.

One of the more popular recent cases of note is that of the "Obama Hope" poster drawn by Shephard Fairey in 2008. The Associated Press filed suit against Fairey for the iconic image drawn from a photograph taken by Mannie Garcia of the AP. Despite the substantial similarity between Fairey's and Garcia's work that case eventually settled.

Across genres in the artistic realm, inspiration is commonly drawn from artists of the past. It is routine practice to pay homage to previous generations. In this realm how does one differentiate between inspiration and theft? Courts commonly apply the doctrine of substantial similarity to make such a differentiation. The "Blurred Lines" court posited the jury to use the doctrine of "substantial similarity" to decide if the song had stolen elements or been inspired by Gaye.

Under this doctrine, a work can still be found to infringe a plaintiff's copyright even if audible elements have been altered. The standard recognizes that an exclusive right to make copies of a work is meaningless if infringement is limited to making only exact and complete reproductions of the work because many elements can be stolen from a song.

This elemental infringement, stealing parts of the song, is what the Gaye family claimed had been done to "Got to Give It Up" when the case began on Tuesday, February 24, 2015. The attorney for Williams and Thicke argued in defense that "Blurred Lines" copied the sound and vibe of the 1970s and merely paid homage to Marvin Gaye as an artist. The attorney also introduced the defense that according to copyright law prior to 1978, when the song was made, Gaye's children could not hold copyright to the musical recordings, only the sheet music.

Judge John A Kronstadt, in the US District Court for the Central District of California, agreed with this argument of the law. During trial, Kronstadt allowed only a stripped down version of the song by Gaye with his lyrics over a bass line and keyboard to be played in court. Thicke performed "Blurred Lines" for the court on a keyboard with his vocals and also performed songs by U2, the Beatles, Michael Jackson and others, as a demonstration of how easily one song can be made to resemble another.

Ultimately, the jury ruled that Williams and Thicke had to pay, and the verdict is sending the music industry in a frenzy, serving as a cautionary tale to musicians making use of past artists' works. The problem is that there are no clear guidelines governing the use of samples in popular music. Kenneth J. Abdo, a music industry lawyer not involved in the "Blurred Lines" case, said in a New York Times interview that it is a common saying in the music industry that "[i]f you get a hit, you will get a writ." But since most cases of this type generally settle, this verdict has a significant effect on the future of popular music. It is very possible that the outcome of this case may serve as a hindrance on creativity in the popular music industry, where much of the art is born and borrowed from references to the past.

Keywords: minority, trial, litigation, Robin Thicke, Marvin Gaye, copyright infringement

Sathima H. Jones is with the Superior Court of New Jersey—Civil Division in Newark, New Jersey.

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