AUGUST 20, 2013
By Oliver Herzfeld
The composers of the hit song “Blurred Lines”, Robin Thicke, Pharrell Williams and Clifford Harris, Jr. (a/k/a T.I.), have commenced a lawsuit against Marvin Gaye’s family, as owners of Gaye’s “Got to Give It Up”, and Bridgeport Music, as owner of Funkadelic’s “Sexy Ways”. The complaint is for declaratory relief, meaning the plaintiffs are not pursuing any affirmative action, injunction or award of damages; they are only seeking a judgment that decides the rights of the parties. The plaintiffs commenced the lawsuit because both Marvin Gaye’s family and Bridgeport Music have threatened the plaintiffs with copyright infringement litigation based on similarities between “Blurred Lines” and each of “Got to Give It Up” and “Sexy Ways”, respectively. The key question of the lawsuit is: could the composers be held liable for copyright infringement if they were influenced and inspired by Marvin Gaye’s and Funkadelic’s prior works, but did not actually sample such prior works or otherwise literally copy any of Marvin Gaye’s or Funkadelic’s music or lyrics?” Surprisingly, the answer is: “it depends.”
Elements Of Copyright Infringement
It is axiomatic that copyright law protects the expression of ideas but not the ideas themselves. Sometimes the distinction between an idea and its expression is clear-cut but at other times the distinction can be obscure. As a result, courts have relied on the following two-prong test to determine copyright infringement:
- Copying of a prior work; and
- A substantially similarity to the prior work sufficient to constitute improper appropriation.
I will consider each element in turn.
Copying can be proven by either direct evidence (e.g., a party’s admission) or circumstantial evidence. Many courts allow copying to be circumstantially proven with a two-part analysis based on evidence of access and similarity. The amount of access and similarity required to determine whether copying took place are inversely proportional. In other words, the more access a party had to a prior work, the less similarity must be shown to prove copying. Similarly, the more similarities that exist, the less access must be shown to prove copying. If there is no evidence of access, some courts will presume copying if the similarities are “striking” such that it is highly unlikely to have been the result of a coincidence or accident. But any such presumption may be rebutted by evidence of no access or independent creation. If there is evidence of both access and similarities, then the trier of fact must determine whether the similarities are suf?cient to prove copying.
Proof of copying is necessary but not sufficient to determine copyright infringement. There must also be a substantially similarity to the prior work sufficient to constitute improper appropriation, where “substantial” means substantial in degree as measured either qualitatively or quantitatively and “similarity” means similar in the eyes of the ordinary member of the intended audience.
In the case at hand, the plaintiffs had access to, and were likely influenced and inspired by, Marvin Gaye’s and Funkadelic’s prior works. The question is: are the similarities between the works sufficient to prove “copying” in the eyes of the law and “substantial similarity” in the eyes of ordinary members of the plaintiffs’ listening audience? If so, the plaintiffs will be held strictly liable for copyright infringement even if their copying was completely unintentional and accomplished subconsciously. If not, the court will side in favor of the plaintiffs and hold that “there are no similarities between [the] plaintiffs’ composition and those the [defendants] allege they own, other than commonplace musical elements.” As you can see, the blurred lines in this case are not limited merely to the song title.