Andrew K. Gonsalves, The Daily Record Newswire
This year’s smash hit song, “Blurred Lines” by Robin Thicke (featuring Pharrell Williams and T.I.), has become the fastest selling single in the digital age, selling more than 5 million copies in just a 22-week period. By one count, the YouTube.com video of “Blurred Lines” has garnered more than 140 million views.
After the release of the song and its accompanying provocative video in late March 2013, Thicke has seen his celebrity skyrocket. Even the eyebrow-raising and twerk-laden duet of the song with Miley Cyrus at the MTV Video Music Awards has only served to extend the popular life of “Blurred Lines,” just when many other hit songs would be winding down in popularity.
Most songwriters and recording artists can only dream of realizing this sort of success and attention. While Thicke is certainly appreciative of his turn in the worldwide spotlight, he is also mindful of how such success can expose the more seedy side of the music business, as evidenced by his lawsuit for declaratory relief for non-infringement of copyrights covering songs by Marvin Gaye and Funkadelic.
The creative back story behind ‘Blurred Lines’
“Blurred Lines” was co-written by Thicke, Williams and Clifford Harris Jr. (a rapper better known by his stage name, T.I.). In a way, Thicke’s own public retelling of how he created “Blurred Lines” may have unwittingly exposed himself and his co-writers to potential copyright infringement claims relating to Marvin Gaye’s song, “Got to Give It Up.”
Around the time that “Blurred Lines” reached No. 1 on the Billboard Hot 100 chart, Thicke gave an interview in which he acknowledged being influenced by Marvin Gaye during the writing of the song (Reuter, Annie, Robin Thicke On His First No. 1, ‘Blurred Lines’: ‘We Didn’t Know It Would Be This Big,’ Radio.com, June 12).
In the interview, Thicke recalled how he wanted to create a song that “embodied the fun vibe of his favorite song of all time, Marvin Gaye’s ‘Got to Give It Up.’” He and co-writer Williams then went to work in the recording studio, and after about an hour of jamming, dancing and having fun bantering back-and-forth, the two had created the basic track that became “Blurred Lines.”
Based on Thicke’s admission, it is reasonable to see why Marvin Gaye’s heirs might be interested in seeking some sort of compensation from Thicke and his co-writers, particularly in view of the massive success of the song. In fact, Marvin Gaye’s estate, which purportedly has an ownership interest in the song “Got to Give It Up,” has notified Thicke and his co-writers that if it does not receive a monetary settlement, the estate intends to initiate litigation for copyright infringement against the “Blurred Lines” collaborators.
Similarly, Bridgeport Music, Inc., which owns the rights to Funkadelic’s song “Sexy Ways,” also notified Thicke, Williams and Harris that it intended to commence litigation against them for copyright infringement of “Sexy Ways,” unless Bridgeport Music received an appropriate amount of money from the “Blurred Lines” co-writers. The alleged claim by Bridgeport Music is that “Blurred Lines” contains samplings taken from “Sexy Ways.”
Given the magnitude of the success of “Blurred Lines” and the money already generated by the song and its potential for huge future royalties, Thicke apparently was compelled to take preemptive action against Marvin Gaye’s estate and Bridgeport Music. Therefore, Thicke and his co-writers have initiated a lawsuit against Marvin Gaye’s estate and Bridgeport Music for a declaration of rights under the Copyright Act of 1976, 17 U.S.C. §§ 101 et seq.
The ‘Blurred Lines’ complaint for declaratory relief under the Copyright Act
On Aug. 15, Thicke and his co-writers (the plaintiffs) filed a complaint for declaratory relief against Bridgeport Music and the Marvin Gaye estate (collectively the defendant) in the U.S. District Court for the Central District of California, Western Division (Civil Action No. 13-cv-06004).
At the outset of the complaint, the plaintiffs state that, despite their “utmost respect for and admiration of Marvin Gaye, Funkadelic and their musical legacies,” they felt it necessary to file the action “in the face of multiple adverse claims from alleged successors in interest to those artists.”
In general, to support a case for copyright infringement of a song, the copyright owner must provide proof of his ownership in the song and proof of copying of the song. There must also be a substantial similarity between the original song (i.e., the prior work) and the alleged infringing song. Proof of copying can be met by showing either direct evidence of copying (e.g., an admission by the alleged infringer) or indirect evidence of copying.
In deciding whether there is indirect evidence of copying, the courts will often conduct a two-part test. Under this two-part test, the court will look at (1) the alleged infringer’s access to the original song and (2) the similarity of the original song to the alleged infringing song.
Showing that an alleged infringer had access to prior songs by well-known artists such as Gaye or Funkadelic is usually not a difficult bar to clear for the copyright owner. In the “Blurred Lines” case, Thicke even publically admitted his access to Gaye’s “Got to Give It Up” when he acknowledged using the song as the inspiration for “Blurred Lines.”
Therefore, in copyright infringement litigations of popular songs, the issue often depends on whether there is “substantial similarity” between the original song and the alleged infringing song. And that certainly will be the paramount issue in the “Blurred Lines” declaratory relief action.
In deciding this issue, the courts have taken the view that infringement may be present where the “whole meritorious part” of the original song is included in the alleged infringing song, without any substantial alteration of the meritorious part. With regard to both “Got to Give It Up” and “Sexy Ways,” Thicke and his co-writers assert that there are, in fact, no similarities between “Blurred Lines” and these songs, “other than commonplace musical elements.”
In the complaint, Thicke asserts that Marvin Gaye’s estate is alleging copyright infringement because “Blurred Lines” and “Got to Give It Up” “feel” and “sound” the same. While the complaint acknowledges that the intent in producing “Blurred Lines” was to “evoke an era,” it also asserts that being reminiscent of a “sound” is not copyright infringement. In essence, as stated in the complaint, Thicke expressly accuses Marvin Gaye’s estate of “claiming ownership of an entire genre, as opposed to a specific work.”
With regard to Funkadelic’s “Sexy Ways,” the complaint directly rebuts Bridgeport Music’s allegation that “Blurred Lines” incorporated samples of “Sexy Ways.” While not mentioned in the complaint, Thicke and his co-writers have important support from one of the co-authors of “Sexy Ways,” the famous and much-admired Funkadelic founder, George Clinton. Clinton, on the same day that the complaint was filed, released a tweet from his Twitter account (@George_Clinton), which seems to put the issue at rest in favor of Thicke, as follows: “No sample of #Funkadelic’s ‘Sexy Ways’ in @RobinThicke’s ‘Blurred Lines’ — yet Armen Boladian thinks so? We support @RobinThicke @Pharrell!” (quoted from @George_Clinton, 11:18 p.m., Aug. 15).
Implications for the music industry
The notoriety of “Blurred Lines” and the publicity it has received in recent months makes this a high-profile copyright infringement case for the music industry. Thicke has been adamant that his song is “starkly different” from “Got to Give It Up” and “Sexy Ways,” and that “Blurred Lines” did not incorporate any samplings from “Sexy Ways.”
While it appears that Thicke and his co-writers have good arguments to show non-infringement, the court still must make a determination as to the similarity of “Blurred Lines” to “Got to Give It Up” and “Sexy Ways.” Some who have an interest in the music industry have expressed concern that a ruling against Thicke could raise the bar too high for creating new music.
They argue that such a ruling could essentially prohibit a songwriter from evoking the “sound” or “feel” of a prior piece of music, which could potentially make a whole genre of music out of bounds for new songwriters. This likely will prove to be an overreaction to this controversy.
More likely than not, the court will seek to follow the existing copyright laws and applicable precedent and arrive at an appropriate conclusion. However, until the ruling is handed down, the line between non-infringing new songs that are simply inspired by prior songs and those that violate the copyrights of these prior works will remain blurred.
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Andrew K. Gonsalves is a senior attorney at the intellectual property law firm of Heslin Rothenberg Farley & Mesiti P.C. He can be reached by email at akg@hrfmlaw.com, or by phone at (585) 288-4832.
