A Los Angeles Federal court jury decided this week that singer Robin Thicke’s and singer/producer Pharrell Williams’ megahit, Blurred Lines, infringed upon Marvin Gaye’s 1977 hit Got to Give It Up. The jury’s verdict, reached after eight days of trial testimony, awarded the Gaye family $7.4. $4 million of that award represents the estimated license cost for the right to use the Gaye-penned song, $1.8 million were profits earned by Thicke from his exploitation of it, and $1.4 were profits earned by Williams from his exploitation of it. This is one of the largest jury awards for a music copyright infringement case. Most of these cases, like the recently settled Sam Smith/Tom Petty copyright infringement dispute, are settled out of court or are dismissed by the court as a matter of law on summary judgment. This case is notable not only for the size of the verdict, but the strategies employed by the lawyers for both sides.
This case also illustrates the difference between the copyrights to a musical composition (which protects the chords, melody and lyrics of a song and is normally owned by a songwriter or musical publisher) and the copyrights to a sound recording (which protects the performances of the artist and recording engineer/producer as captured on a recording and is normally owned by an artist or record label). That distinction was a critical part of the case.
Interestingly, the case started with a filing by Thicke and Williams seeking a declaratory judgment that Blurred Lines did not infringe Got to Give It Up. Last October, the U.S. District Court in Los Angeles failed to grant Thicke and Williams a judgment based on summary judgment. However, the judge ruled that, under the Copyright Act of 1909, the copyright statute that was in effect as of the time of the publication of the Marvin Gaye recording in 1977 (the current Copyright Act of 1976 did not become effective until January 1, 1978), the Gaye family had not made the necessary deposits of the sound recording of Got to Give It Up with the US Copyright Office and, as such, could not claim a copyright on the sound recording. Subsequently, Williams and Thicke filed a motion with the court right before the trial was scheduled to begin to bar the sound recording from being played. Gaye’s family argued that the musical composition (the copyright status of which was not in dispute) is embodied in Gaye’s sound recording of it and that it was good evidence of Williams’ and Thicke’s infringement of the musical composition copyright. The court was not persuaded by that argument and, in a very unusual ruling, barred the playing of the Marvin Gaye sound recording at trial. Instead, the only thing that the court allowed the jury to hear was the sheet music of Got to Give It Up played on a keyboard and sung exactly as written. That sheet music lacked a good deal of the elements that seemed to be most similar between Blurred Lines and Got to Give It Up, in particular the unique percussion and Marvin Gaye’s distinctive vocal delivery (both of which arguably seem to be copied in Blurred Lines).
Thicke, whose credibility at trial really became an issue, admitted in depositions that he had lied to the media and was high on Vicodin and drunk during the recording sessions for Blurred Lines. While Thicke is credited as a co-writer of Blurred Lines, at trial he admitted that Williams had done virtually all of the writing of Blurred Lines. For his part, Williams claimed that he did not copy the Gaye classic, but rather only took its “feel” (that “late 70’s feeling”) to create an entirely new song. Williams testified that he is a huge Marvin Gaye fan and he claimed that he was inspired by Gaye’s music, but did not copy it.
The attorney for Williams and Thicke (and a third defendant, rapper T.I., whose rapping also appears as part of the Blurred Lines recording), emphasized that the Gayes only owned compositional elements that were reflected in the sheet music for Got to Give It Up, and that their rights did not extend to the other well-known elements of Marvin Gaye’s recording of that song, including the distinctive percussion and his vocal style. That attorney brought in a musicologist as an expert witness who testified as to the differences between the two songs and to show similarities between other famous songs.
Faced with this tactical obstacle, the lawyers for the Gaye family brought in their own musicologist to assess the similarities of the two songs. That musicologist testified to similarities in a “signature phrase” for each song, the “hook” in each song, the keyboard-bass interplay in each song and the themes and lyrics of each song.
As a trained musician, I have listened to both songs, although I have not listened to the stripped down version of Got to Give it Up that was played for the jury. Listening to the two recorded versions, you can hear certain similarities, although I thought that it was mostly just because the two songs share the same basic feel or groove. Those general elements of similarity normally are not enough to constitute copyright infringement. Remember, the jury did not have the ability to listen to the Marvin Gaye recording, but rather only a playing of the more stripped down sheet music for the song.
Despite the fears by the Gaye family that the judge’s ruling of the inadmissibility of the recording, the jury found that Thicke and Williams improperly used copyrighted elements of Gaye’s composition and ordered the payment of damages. While the decision is likely to be appealed, both Williams’ and Thicke’s reputations have been damaged, not to mention their respective bank accounts.