Many of the features that make the songs sound similar – including the falsetto and the use of a cowbell to provide rhythmic accents – were not part of Gaye’s composition. This case also involves another legal wrinkle: because “Blurred Lines” did not use Gaye’s performance of “Got To Give It Up” (this is not a case where they “sampled” a recording of Gaye’s performance), the only relevant musical elements were those in Gaye’s composition, which under the law was limited to the music and lyrics that were on the sheet music deposited with the Copyright Office. 2 And, to the extent that copyright-protected material from Gaye’s song recurs in Thicke’s, it is too inconsequential to be considered “substantial.” 3 Many of the musical elements common to “Blurred Lines” and “Got To Give It Up” fall into these unprotectable categories. No one owns the 12 bar blues, or the I-IV-V chord progression, or the two-step, or a descending melodic line, regardless of who originated them.
(For example, “Got To Give It Up” was inspired by Johnnie Taylor’s song “Disco Lady.” Gaye cannot claim copyright over material that he himself borrowed.) In addition, copyright’s “scenes à faire” doctrine allows anyone to use the defining elements of a genre or style without infringing copyright, because these building blocks are “indispensable” to creating within that genre. That’s what is lacking in the “Blurred Lines” case, and why, based on the law, my students would have unanimously ruled for Pharrell and Thicke.Ĭopyright only covers “original, creative expression.” Anything Marvin Gaye copied directly from his Motown, funk, or disco predecessors is not “original” and should be off the table. So the question is: when do musical similarities amount to copyright infringement? According to the law, only when one musician has copied a quantitatively or qualitatively substantial amount of copyright-protected material from another. Recurrence is not therefore an inevitable badge of plagiarism.”
To quote Judge Learned Hand: “It must be remembered that while there are an enormous number of possible permutations of the musical notes of the scale, only a few are pleasing and much fewer still suit the infantile demands of the popular ear. This is not only because musicians build on the past, 1 but also because (at least in popular music) they are creating with a limited musical vocabulary. There are countless similar-sounding songs. That’s how creativity works: new musicians build on the genres and styles that preceded them. Yes, Thicke and Pharrell were both inspired by “Got To Give It Up” when writing “Blurred Lines.” In Pharrell’s words, “I must’ve been channeling…that late-’70s feeling.” But it is not copyright infringement to write a song with the same “groove” or “feel” as another. The answer was the opposite-based on their familiarity with jury trials, they predicted that Gaye’s heirs would win. Then I asked who they thought would prevail. They offered a unanimous verdict for Thicke. After we finished hashing out the detailed legal and musicological arguments, I asked the class, based on the law, which side should prevail.
ROBIN THICKE SONGS LIST TRIAL
Before this verdict, we staged a mock trial on the Blurred Lines case. I teach Music Copyright at Duke Law School. On March 10, 2015, a federal jury ordered Robin Thicke and Pharrell Williams – authors of the hit song “Blurred Lines” – to pay nearly $7.4 million dollars to Marvin Gaye’s heirs, for infringing copyright in Gaye’s 1977 hit “Got To Give It Up.” Whatever you think of the controversial lyrics, Robin Thicke, or the provocative video if you love music, this decision should be deeply troubling.
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