In November, Robin Thicke and Pharrell Williams were ordered to pay $5.3 million to the Marvin Gaye estate for infringing Gaye’s Got To Give it Up in their 2013 Blurred Lines single. Thicke and Williams will also have to pay at least half of the song’s future publishing income.
This case is interesting because legal experts have argued that the ruling puts a different spin on copyright law. The court effectively lowered the standard of infringement for musical compositions, making the ‘groove’ of a composition – i.e. the interaction between, say, a bass and a drum in a particular rhythmic pattern – important to its decision-making. The ruling has created anxiety in the songwriting community, which often draws inspiration on grooves. Of course, this more lenient interpretation of copyright infringement brings on the possibility of added lawsuits against songwriters
The Gaye estate produced an audio mash-up of Blurred Lines and Got To Give it Up to show “concrete musical illustrations of the substantial similarities” between the songs.1 Further, Gaye’s estate attorney, Richard Busch, invited two musicologists who testified to the effect that there was a similar and identifiable signature phrase in both, that there were examples of common recurring three or four-note melodic patterns, as well as similar hooks, lyrics, and instrumentation. Both experts argued that such similarities ultimately gave a similar kind of feel or vibe to the two songs.
A similar feel or vibe, though, had not so far been interpreted as a violation of copyright law, which maintains that there can be no copyright infringement of an idea, only of the exact expression of that idea. The standard is thus high, for in theory there must be a perfect match up between melody and rhythm, even down to the same notes (a transposition of a phrase note by note into a different key would still be copyright infringement).
Therefore, the verdict in this case was puzzling to the music industry. Similarity leading to an identifiable vibe is not an offense in copyright law. But the case was tried in front of a jury, and the Gaye estate had, above all, to convince the jury. Michael Harrington, a much sought-after figure in such cases, says “as an expert witness, my job is to give extrinsic testimonies, which are important in this case; however, intrinsic testimonies are usually more important for evidence as they come directly from [the jury] who have not acquired any kind of special skills on a particular matter… [The views of the jury] constitute a steady balance for extrinsic testimonies.” 2
Indeed. And Thicke and Williams may not have impressed the jury well either, another factor in the decision. When asked a simple question about chord structures, Pharrell Williams seemed uneasy. In particular, Robin Thicke was perceived as being less than candid, inconsistent in his statements, and altogether unprofessional. A separation from his wife added to an erratic demeanor in court3 and he appeared drunk and high on Vicodin in press interviews about the song4.
In fact, the jury first awarded the higher sum of $7.3 million to the Gaye estate. When United States District Judge John A. Kronstadt officially rendered judgment, he amended the sum to $5.3 million, but included punitive damages on future publishing monies as well.5 The final judgment appears to have been more in line with Thicke and Williams’s current and future publishing earnings on Blurred Lines.
By its actions, the jury has arguably called into question the integrity of copyright law as it applies to musical compositions. A musical source of inspiration, leading to the creation of a commonplace feel, is after all, a desirable trait that musicians emulate all the time. Arrangers, especially, should be able to communicate too with their players to produce given results without fear of their employers being sued, and this is especially true in film and TV.
Moreover, if the sound recording of an old composition is going to be privileged now over the actual composition of a tune, the ruling seems to be changing the traditional view of copyright infringement on its head. Hitherto, it was the composition of a song itself that decided infringement cases, not another sound recording whose musical vibe was found to be part of the new composition. “If you’re not influenced by Marvin Gaye, there must be something wrong with you; we hardly realize it anymore”, says Harrington again. He could just as well be talking about James Brown, Chuck Berry, the Beatles, or Michael Jackson—all of them a product of their own influences.
Copyright law should make musical creativity flourish, not stifle. This ruling suggests that unless the causal listener, i.e. the jury in the dock, can separate a well-known musical vibe from the actual composition of a song, copyright law will not work well enough. Defendants, and their attorneys, will have to work harder in court to explain this.
By Peter Alhadeff and Shereen Cheong
1. Weisman, Aly. “Listen to the mash-up that proves Robin Thicke and Pharrelle copied a Marvin Gaye song to make ‘Blurred Lines’” Business Insider News. Business Insider, 10 March 2015. Web. 3 November 2015.
2. Interviewed by the authors, with Lydia George.
3. TMZ Staff. “Robin Thicke, Paula Patton Divorce Is A Done Deal” Thirty Mile Zone News. Thirty Mile Zone, 18 March 2015. Web. 12 November 2015.
4. Jagannathan, Meera. “Video footage of Robin Thicke in ‘Blurred Lines’ deposition released: ‘I was high and drunk’ in every interview” New York Daily News. New York Daily News, 24 October 2015. Web. 12 November 2015.
5. Gardner, Eriq. “Hollywood Docket: Agency Wars; ‘Blurred Lines’ Judgment; ‘Bait and Switch’ TV Ads” The Hollywood Reporter News. The Hollywood Reporter, 3 December 2015. Web. 3 December 2015.