By Eric Feder
On Oct. 30, 2014, a judge from the Central District of California denied the motion for summary judgment by Robin Thicke, Pharrell Williams, and Clifford “T.I.” Harris, Jr. in their copyright litigation against the heirs of Motown singer-songwriter Marvin Gaye over authorship of the hit single “Blurred Lines.”
The song—sung by Thicke, with a rap verse from T.I. and backing vocals from Williams, who also produced the music for the track—was the unofficial “Song of the Summer” of 2013. The track’s blend of falsetto-driven soul, funky percussion and a loose party atmosphere (complete with background whoops and hollers), helped it stand out among the monotonously thumping electronic dance hits that otherwise topped the charts that year. But to Marvin Gaye fans, those exact elements uncannily called to mind Gaye’s 1977 disco hit “Got to Give It Up.”
In August 2013, after Gaye’s children began publicly pointing out the similarities between the songs and hinting at the possibility of litigation, Thicke, Williams and T.I. filed a preemptive lawsuit seeking a declaratory judgment that “Blurred Lines” was not infringing. (The plaintiffs also sought a declaratory judgment that the song did not infringe the Funkadelic song “Sexy Ways,” but those claims were voluntarily dismissed in March 2014.) In their complaint, the plaintiffs alleged:
Plaintiffs, who have the utmost respect for and admiration of Marvin Gaye, Funkadelic and their musical legacies, reluctantly file this action in the face of multiple adverse claims from alleged successors in interest to those artists. Defendants continue to insist that plaintiffs’ successful composition, “Blurred Lines,” copies “their” compositions . . . .
. . .
The basis of the Gaye defendants’ claims is that “Blurred Lines” and “Got To Give It Up” “feel” or “sound” the same. Being reminiscent of a “sound” is not copyright infringement. The intent in producing “Blurred Lines” was to evoke an era. In reality, the Gaye defendants are claiming ownership of an entire genre, as opposed to a specific work.
The Gayes counterclaimed for copyright infringement of “Got to Give It Up,” and added a claim that Thicke’s 2011 single “Love After War” infringed a different song by Marvin Gaye, “After the Dance.”
The discovery phase of the case took some strange turns, particularly the depositions of the plaintiffs, which were unsealed after the summary judgment motions were filed. During interviews to promote the song before the litigation, Thicke had seemed to concede that “Blurred Lines” intentionally imitated (if not infringed) Gaye’s song. For example, in one interview, Thicke had stated that while he and Williams were in the studio, he commented that “Got to Give It Up” was one of his favorite songs of all time, and asked Williams to create “something with that groove.” They then created the full song “in about a half hour.” During his deposition, Thicke disavowed those statements, explaining that “he had a drug and alcohol problem for the year” and “didn’t do a sober interview.” He also explained that he had previously inflated his contribution to the composition of the song in the media because he was “envious” of Williams, but that he was, in fact, “high on Vicodin and alcohol when [he] showed up at the studio.” As Thicke conceded, although he received songwriting credit for the composition, “the reality is, is that Pharrell [Williams] had the beat and he wrote almost every single part of the song.”
On July 22, 2014, the plaintiffs filed a motion for summary judgment. Thicke’s deposition testimony ended up having little effect on the court’s denial of the plaintiffs’ summary judgment motion. The court held that “Thicke’s inconsistent statements do not constitute direct evidence of copying,” because he “did not specify that [he] copied protected elements” of the compositions. (Slip Op. at 12.) Nevertheless, the court denied the plaintiffs’ motion.
Since there was no direct evidence of actual copying, and no dispute as to Gaye’s ownership of the copyrights or plaintiffs’ access to Gaye’s works, the motion turned on whether the two works were substantially similar. The court applied the two-part analysis set forth by the Ninth Circuit for determining substantial similarity: the “objective extrinsic test” and the “subjective intrinsic test.” On summary judgment, only the objective extrinsic test is relevant, because, as the court explained, “the subjective question whether works are intrinsically similar must be left to the jury.” (Slip Op. at 6.)
One of the critical issues for the motion was which aspects of Gaye’s composition were actually protectable. Both parties filed competing musicology expert reports purporting to show whether or not “Blurred Lines” copied protectable elements from “Got to Give It Up.” The plaintiffs claimed that the defendants’ analysis was fundamentally flawed because it was based on the recordings, not the compositions themselves. Thus, according to the plaintiffs, musical elements “such as the ‘groove’ of the sound recording, the sound of the instruments, or other recording or performance elements (e.g., falsetto singing, party noise)—simply have no bearing on the infringement claim here.” (Slip Op. at 8.)
This issue was complicated by the fact that Gaye’s compositions were created and registered prior to the effective date of the 1976 Copyright Act, and are thus protected under the 1909 Copyright Act. Under the earlier statute, a work was protected when it was published with the requisite notice of copyright protection, or, if unpublished, when the owner deposited a manuscript copy of the music in the copyright office. However, unlike the 1976 Act, releasing a sound recording of a composition did not constitute “publication” of a musical work under the 1909 Act. Thus, “in order to claim copyright in a musical work under the 1909 Act, the work had to be reduced to sheet music or other manuscript forum.” (Slip Op. at 10 (quoting Nimmer § 2.05[A] at 2-55).)
The problem for the Gayes’ position in the case is that, apparently, the only sheet music or manuscripts containing their father’s compositions at the time they were registered were the “lead sheets” for the songs that were deposited in the Copyright Office, which are skeletal outlines of the sheet music for the song “representing the lyrics and some of the melodic, harmonic, and rhythmic features that appear in the recorded works.” (Slip Op. at 7.) (Gaye’s widow testified that he did not write sheet music of the songs, and in fact did not fluently read sheet music at all.) Because the defendants had not produced evidence creating a genuine issue as to whether the copyrights in Gaye’s songs encompassed material other than that reflected in the lead sheets deposited with the Copyright Office, the court limited the scope of copyright protection of the defendants’ works to what was contained on the lead sheets. As a result, the court held that certain elements that the defendants’ musicologists had identified as substantially similar—including certain background vocal harmonies and hooks, “percussion choices,” use of falsetto in the vocal parts and the “use of party noises as accompanying sound”—could not be considered in the court’s analysis of whether the plaintiffs’ songs were infringing.
The court also declined to consider the audio “mashup tracks” that the defendants’ experts prepared, juxtaposing and layering parts of “Blurred Lines” with parts of “Got to Give It Up.” The court explained that “to determine whether the works are substantially similar based on their sound is a subjective assessment that is the function of the factfinder at the time of trial. It is not to be performed by a court at the summary judgment phase.” (Slip Op. at 5 n.4.) In fact, it appears that numerous amateur “factfinders” are already engaged in exactly this analysis: A search on YouTube and other audio and video streaming services will produce dozens of fan-made “mashups” that place Marvin Gaye’s vocal over the backing track to “Blurred Lines,” or Robin Thicke’s vocal over the backing track to “Got to Give It Up.”
Ultimately, even with the more limited scope of protectable elements in the defendants’ works, and without consideration of the audio similarities between the recordings, the court had little trouble denying summary judgment. Based on the conflicting but credible musicological analyses of the parties’ experts, the court held that genuine issues of material fact existed with respect to whether the plaintiffs’ works copied protectable elements from the defendants’ works. Instead, these questions must be resolved at what promises to be a very colorful trial.