Robin Thicke’s hit single “Blurred Lines” has certainly had its fair share of both popularity and controversy. From the success of being Billboard’s No. 1 song and No. 1 album, to the claims of sexism over its lyrics and 18+ film clip and various parody videos criticising its use of #stupidhashtags, the latest development is somewhat less salacious. Thicke and collaborators Pharrell Williams and Clifford Harris, Jr (aka T.I.) have filed a pre-emptive lawsuit in the Californian registry of the United States’ District Court, seeking declarations that the song does not infringe the copyright of Marvin Gaye’s “Got to Give It Up” or Funkadelic’s “Sexy Ways”.

The Complaint alleges that the Defendants (Bridgeport Music, Inc. the owner of Funkadelic’s songs, and three relatives of Marvin Gaye) have threatened litigation for copyright infringement if the Plaintiffs do not pay a monetary settlement. In response to these adverse claims, and in an attempt to stay on the front foot, the Plaintiffs have “reluctantly” filed this action.

Thicke is no stranger to collaborating with others. Indeed, back in 2002, we saw a long-haired, dishevelled Thicke cycling through New York City in his debut single “When I Get You Alone”, which sampled Walter Murphy’s “A Fifth of Beethoven” (a disco rendition of Beethoven’s Fifth Symphony). However, in relation to “Blurred Lines”, Thicke states he “created a hit and did it without copying anyone else’s composition” and that:

  • the intent was only to evoke an era;
  • “commonplace musical elements” are the only similarities; and
  • “being reminiscent of a “sound” is not copyright infringement”.

In an interesting development, George Clinton, of Funkadelic fame, has come out publicly (on Twitter) in support of Thicke (and against the head of Bridgeport, Armen Bolandia, with whom he has previous legal history):

Click here to view image.

If this action was taking place in Australia, a Court would have to assess whether “Blurred Lines reproduces a “substantial part” of either the Marvin Gaye or Funkadelic tracks. While ideas and styles are not protected by copyright, in the context of a musical work, it can be difficult to distinguish between an idea and its expression. A Court would analyse whether “Blurred Lines” reproduced an important or distinctive element of the way Gaye and Funkadelic expressed their idea.

Pre-emptive action for declarations is a particularly interesting move in litigation. Such action can serve to resolve uncertainties before rights are violated. It results in legally binding declarations of the Court which tell both parties what their rights and responsibilities are, without awarding any damages. We particularly like the analogy of Judge Blackburn in the Georgia Court of Appeal:[1] “[the] purpose [of a declaratory judgment] is to permit one who is walking in the dark to ascertain where he is and where he is going, to turn on the light before he steps rather than after he has stepped in a hole.

While pre-emptive action is available in Australia, it is rarely used, perhaps due to the cost implications of initiating legal proceedings in circumstances where you might not have actually been sued. However, we have been noticing pre-emptive action being used more frequently in the United States, particularly where celebrities are involved (the App creator of ‘Joustin’ Beaver’ also filed a pre-emptive lawsuit against Justin Bieber, which we wrote about here). Perhaps this marked increase is due to the potential for reputational damage if you are sued, or perhaps it is an attempt to remain in control of the legal action and have a strong position for any settlement negotiations. Either way, while Buzzfeed has come to Thicke’s aid offering “18 words Robin Thicke should know rhyme with “Hug me””, Thicke’s proactive litigious move means he has avoided using the phrase “Sue me”.

Interestingly, a review by the New York Times earlier this month suggested that “Blurred Lines” was “influenced heavily by Marvin Gaye’s “Got to Give It Up””.