In a landmark US decision, Robin Thicke and Pharrell Williams hit Blurred Lines has been found to infringe copyright in Marvin Gaye’s 1977 hit Got to Give it Up.

The LA jury awarded $4 million in damages plus $3.3 million of the profits to Gaye’s estate. The $7.3M award is the largest award for copyright infringement of a musical work, topping the $5.4M Michael Bolton paid to the Isley Brothers for infringing Love is a Wonderful Thing.

US copyright law is similar to that in Australia. For copyright to be infringed, the copyright owner must establish that the infringing work (i) was derived from the copyright work (including, for example, indirectly or sub-consciously) and (ii) includes a “substantial part” of the copyrighted work. Whether a “substantial part” has been taken from a copyrighted musical work involves consideration of the quality of the part taken (i.e melody, key, tempo, harmony, structure etc), its importance to the copyright work, and the extent to which an “ordinary reasonably experienced listener” would consider the two works to be aurally objectively similar.

At the trial, evidence was presented that both writers had referenced Gaye’s Got to Give it Up in interviews when discussing creation of Blurred Lines. Williams, in particular, looked up to Gaye, and said he “must’ve been channelling that late ’70s feeling” when writing the song. This was sufficient to establish derivation. The more complicated issue concerned whether, in using similar rhythm, percussive, background and bass elements, Thicke and Williams had infringed a “substantial part” of Got to Give it Up. Gaye’s representatives argued that these similarities constituted a substantial part, notwithstanding the different melodic and harmonic structure of the two songs. The jury agreed, rejecting Thicke and Williams’ contention that the songs were objectively dissimilar to the average listener.

Readers will be aware that a similar case recently came before the Courts in Australia. In that case, Larrikin Music alleged that a “four bar” flute riff at the beginning of the Men at Work song Down Under constituted a “substantial reproduction” of Kookabura sits in the old gum tree. Having undertaken a qualitative comparison, Jacobson J found that the appropriated riff was a substantial part and that Down Under was accordingly infringing. He nevertheless awarded modest damages, namely royalties of 5%,

Copyright cases involving non-literal copying of musical works will always divide opinion. They depend, in part, on value judgements about the artistic creation process, the importance that particular sections of a musical work have on the work as whole, and the extent to which all aspects of a song should be protected by copyright, including its texture, background arrangement and groove.

This is unlikely to be the final chapter in the Blurred Lines litigation. The first instance decision, in our view, is very likely to be appealed.