The Blurred Line Between Inspiration and Copying - A $7.4 Million Copyright Question
On Tuesday, March 10, 2015, a Los Angeles jury determined that Robin Thicke's single, "Blurred Lines," infringes Marvin Gaye’s 1977 song, "Got to Give it Up." The jury awarded Mr. Gaye's children $7.4 million dollars for the infringement. The verdict triggered tremors in the music industry, blurring the important copyright distinction between "inspiration" and "copying."
Marvin Gaye created a string of hit songs in the years leading up to 1977. On March 15, 1977, Gaye released "Got to Give it Up" and is credited as the sole writer on the song. By June, 1977, "Got to Give it Up" reached number one on the U.S. Billboard charts. Gaye died in April of 1984, leaving to his children the valuable copyrights to his music.
Robin Thicke released "Blurred Lines" on March 26, 2013. Thicke, along with producer Pharrell Williams and Clifford Harris, Jr., were credited as writers. By early summer, 2013, "Blurred Lines" reached number one on the U.S. Billboard charts, and ultimately sold over 7.3 million copies. Williams had been a writer and producer for over 20 years when "Blurred Lines" was released.
After a number of informal allegations, on August 15, 2013, Williams, Thicke and Harris (the "Blurred Lines" writers) filed a declaratory action in the U.S. District Court for the Central District of California against the children of Mr. Gaye (the Gayes). The "Blurred Lines" writers sought a preemptive ruling that "Blurred Lines" did not infringe the copyright of the Gayes to "Got to Give it Up." The "Blurred Lines" writers claimed that the Gayes threatened to initiate a lawsuit if they refused to pay a monetary settlement, based only on the Gaye's unsubstantiated allegations that the songs "feel" or "sound" the same.
Copyright infringement occurs when original elements of a copyrighted work are copied. This requires proof: (1) of actual copying of the plaintiff's work by the defendant and (2) that such copying constitutes an improper appropriation of the plaintiff's work. Copying is typically demonstrated through circumstantial evidence of (1) access to the plaintiff’s work and (2) probative similarities between the works. There is a presumption of copying when there is access and a "substantial similarity" between the works.
The Creation of "Blurred Lines"
Prior to the lawsuit, Thicke stated in a May 7, 2013 interview with GQ magazine that in conceiving "Blurred Lines," he suggested that he and Pharrell "make something like [Got to Give it Up]" and, together, they wrote the song in about an hour. At his April 23, 2014 deposition, Thicke recanted, testifying that he and Pharrell did not discuss "Got to Give it Up" before creating "Blurred Lines." Further, Thicke distanced himself from "Blurred Lines'" creation, testifying that Williams "had the beat and he wrote almost every single part of the song." Thicke testified his prior statements were made because, after Williams wrote what became Thicke’s biggest hit, he was "jealous and ... wanted some of the credit." Williams testified that he did in fact create "Blurred Lines" in about an hour, but did not copy Gaye's "Got to Give it Up."
The "Blurred Lines" writers conceded that they had access to the widely known "Got to Give it Up" at trial. Therefore, the issues remaining for the jury related to copying, including whether this was proven by "substantial similarity" between the works.
Additionally, in an early pretrial hearing, the Court ruled that the 1909 Copyright Act applied and only protected the song's sheet music, not the actual recording. Though the Court refused to allow the original recording of "Got to Give it Up" to be played at trial, it allowed the lawyers to play a custom audio version of specific copyrighted elements of the composition that is on file at the Library of Congress.
Trial began on February 24, 2015. Both sides prepared musicologists and witnesses to testify about the composition of the Thicke/Williams and Gaye songs, in order to inform the jury about the works' similarities or differences. In their trial submissions and at trial, the Gayes argued that strong circumstantial evidence, including Thicke's statements, suggested that the "Blurred Lines" writers copied "Got to Give it Up," and that at least 14 discrete "substantial similarities" existed between the compositions. The "Blurred Lines" writers argued that their song did not have substantial similarities to the sheet music submitted to the Copyright Office for "Got to Give it Up," and went through a comparison of the musical structure of the compositions to attempt to demonstrate the differences between the works.
They also emphasized that the Gayes only owned compositional elements in the "Got to Give It Up" sheet music, leaving out more recognizable elements of the recording like the percussion and singing. They argued that "Blurred Lines" was the same genre and perhaps feel of "Got to Give it Up," but not a copy, and a verdict for the Gaye family would have a chilling effect on musicians trying to evoke an era or create an homage to the sound of earlier artists. Trial ended on March 6, 2016.
After less than two days of deliberation, on March 10, 2015, the jury found that Williams and Thicke (but not Harris) had infringed "Got to Give it Up." The jury awarded the Gayes $4 million in actual damages, $9,000 in statutory damages, and $3.4 million in profits, for a total of approximately $7.4 million. However, the jury refused to find that the infringement was "willful."
On March 12, 2015, Thicke and Williams announced they would appeal the ruling. Their attorney stated, "We are going to exercise every post-trial remedy we have to make sure this verdict does not stand." It is not yet clear which legal bases they will choose, but they will have an uphill battle. In the Ninth Circuit, a jury verdict will be up held if supported by "substantial evidence," and a verdict form itself will be overturned only if there was an abuse of the judge's discretion, also a high bar. The credibility of witnesses and the weight of evidence are not generally subject to appellate review in the Ninth Circuit.
While copyright cases are fact-sensitive, the Williams verdict has sent chills through the music industry. Has the line moved between appropriate inspiration for artists and illegal copying? How will this case affect other forms of artistic works, such as those using sampling? The inconsistent stories by Thicke and the muddled history of the conception of "Blurred Lines" surely affected the jury’s deliberation. But, with any artistic collaboration, how often is the story of conception any clearer? One thing is sure: anyone claiming inspiration from a prior work is smart to address copyright