Aug 19 2013

Robin Thicke Sues to Clear Up “Blurred Lines” Between Copying and Influence

If you haven’t heard Robin Thicke’s catchy hit “Blurred Lines,” get out from under your rock, go to YouTube and click on the video like 140+ Million others have done before you. The song has also gotten a lot of attention from the family of 1970’s soul superstar Marvin Gaye who have publicly stated that they felt the song copied, borrowed from or was otherwise influenced by Gaye’s hit “Got to Give It Up.” Then Bridgeport Music, which owns some of 1970 funk powerhouse Funkadelic’s compositions claimed in the press that the song also lifted some sounds from their song “Sexy Ways.”

So Thicke decided he had enough. He retained LA entertainment boutique King, Holmes and filed a lawsuit in Federal Court to clear up the issue. The Copyright Act of 1976 allows for this step as a way to put to bed any dispute over intellectual property rights. In order to be able to invoke it, there has to be some evidence that an entity has asserted that it has rights to a work or that the work infringes on their intellectual property. The lawsuit does not seek money damages, it only asks the court to declare that there is no infringement. That’s why there has to be some claim made that the work is infringing otherwise, the suit would be asking for an “advisory opinion” which is prohibited under the Federal rules. It’s a smart move by Thicke’s legal team because filing first means that you get to pick the court where it is venued and that you strike first when you are ready and not when your adversary is ready. It let’s you get to draft your press release first and get out the first public spin on the issue. Also, if the defendant does not bring a counterclaim for infringement, the claim could be waived. In IP actions, many times, counterclaims are “compulsory” meaning they must be asserted in the same lawsuit or they will be lost forever. So again, you are forcing your opponents hand and making them file their claim before they are ready and have all their ducks in a row. You also don’t have to sit there and wait for the whole three year statute of limitation to worry about someone coming out of the woodwork to file a claim.

copyright logoThe Hollywood Reporter has an article about the lawsuit that has the songs side-by-side so you can hear them and decide for yourself. (http://www.hollywoodreporter.com/thr-esq/robin-thicke-sues-protect-blurred-607492?) I personally think its pretty clear that “Blurred Lines” does not infringe on “Got to Give It Up.” Courts have long struggled with distinguishing a song that has been “influenced” by another song as opposed to a song that has outright “copied” another song; the first one is permissible the second is not. Blurred Lines certainly has a similar feel and flow to the 70s classic, but that’s not infringement. In a copyright infringement claim (or counterclaim), the plaintiff must show: (i) ownership of a valid copyright; and (ii) unauthorized copying of the copyrighted work. To satisfy the second element, unauthorized copying, a plaintiff must show both that his work was ‘actually copied’ and that the portion copied amounts to an ‘improper or unlawful appropriation’; there has to be what’s called in law a “probative similarity.” In English that means that the similarity between the two must involve something an average lay person can identify and say is copied from the original work.

Once copying has been established, a plaintiff must next demonstrate that the copying was unlawful by showing that there is a substantial similarity between the protectible elements in the two works. The copied elements of the work must be original and nontrivial to constitute improper appropriation. The mere fact that a work is copyrighted does not mean that every element of the work may be protected. Originality remains the most important facet of copyright; copyright protection may extend only to those components of a work that are original to the author. A similar beat or rhythm is normally not enough as that’s just not enough originality to be protectible.

Here, the words are different, the melody is different, even the rhythm is different. The song is certainly evocative of Marvin Gaye’s music and that genre, but the lawsuit makes the point that “being reminiscent of a ‘sound’ is not copyright infringement. The intent in producing ‘Blurred Lines’ was to evoke an era.” Music has always progressed on the shoulders of those who produced music before today’s artists; “influence” is vital to creation of music and to prohibit a song from exhibiting elements of a prior genre or artist’s influence would completely stifle creativity. It can indeed seem like a “blurred line” between copying and “influence” but courts have ventured into this arena many many times before and generally favor creativity; courts need some substantial similarity to find an infringement has occurred.

So I expect that Thicke and his team will succeed in cutting off at the pass the Gaye Family and Bridgeport Music. Suing first was a smart move that will bring a quick end to all the discussions and let the music speak for itself.

2 comments

  1. Fascinating analysis. I sent the URL to two publishing listservs of which I am a member since some of this applies to book publishing directly and, sometimes, indirectly. I had a question about music copyright when I wrote my novel and wanted to cite a country song. When I could not reach the copyright owners, I deleted exact quotes of the song and paraphrased the meaning, while attributing the song to the who made the song popular.

    1. Thanks Gloria, it is appreciated.

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