Blurred Lines, Robin Thicke’s collaborative track with Pharrell Williams, from the album of the same name, has been courting controversy since its release in 2013. Boycotted by university student unions and slammed by feminist groups for its contentious lyrics, it is currently the subject of a plagiarism claim by the family of the late Marvin Gaye who are asserting similarities to Gaye’s instrumental track Got To Give It Up. The trial began on February 17th 2015 before a jury in LA who, in a controversial move by the judge, will now be instructed to decide the case by comparing Blurred Lines to Gaye’s song as originally committed to sheet music rather than by listening to it as recorded and released.
Precedents in music copyright disputes have come mainly from the US. George Harrison famously argued “subconscious” plagiarism when accused of copyright theft by Bright Tunes Music Corp, who owned the copyright of the Chiffons’, He’s So Fine. Harrison allegedly used that song’s melody in his subsequent single, My Sweet Lord, claiming to have been inspired not by the Chiffons, but by the out-of-copyright hymn Oh Happy Day. The dispute was settled outside of court.
Indeed, it is by no means uncommon for music publishers to co-operate and settle these disputes outside of litigation, as was also recently the case for Sam Smith’s award winning song Stay With Me. In the face of complaints by Tom Petty’s lawyers that the song bore a striking resemblance to Petty’s 1989 hit, Won’t Back Down, Smith agreed outside court to give Petty and composer Jeff Lynne a 12.5% songwriting credit and royalties, despite maintaining that the songs’ similarities were a “complete coincidence”. The Blurred Lines dispute is therefore a rare (and potentially game-changing) opportunity to see a music copyright claim litigated.
In the UK, as well as in the US, both ‘unconscious’ and ‘conscious’ copying can constitute infringement. In Francis Day and Hunter v Bron it was held that unconscious copying can amount to infringement, where it can be demonstrated that the defendant was familiar with the original work and where a consequent connection with the subsequent work can be established. Accordingly, there must be a causal link between the original and the piece in question. However, this connection is generally harder to prove in cases arguing unconscious plagiarism.
In the case of Blurred Lines, Robin Thicke had previously declared himself familiar with Marvin Gaye’s work, having stated in an interview with GQ magazine prior to any legal proceedings that Got To Give It Upwas one of his favourite songs and that he “was like damn, we should make something like that, something with that groove”. It is perhaps telling that, in later interviews, he denied that Marvin Gaye’s music had ever been an influence.
What is unusual about this case is that Robin Thicke’s legal representation actually initiated legal proceedings by pre-emptively seeking declaratory relief in August 2013 that Blurred Lines did not infringe the copyright in Got To Give It Up, following allegations of plagiarism by the Gaye family. The Gayes’ lawyers then responded with a countersuit as well as further allegations of copyright infringement of a second Marvin Gaye song.
The initial declaration sought by Thicke’s lawyers was refused by the judge on the basis that Gaye’s family "have made a sufficient showing that elements of Blurred Lines may be substantially similar to protected, original elements of Got To Give It Up”. However, neither did the Gaye family emerge a clear winner from the early stages of the case; there was a highly contested dispute over whether Gaye's copyright should be limited to the compositions as recorded on the sheet music registered with the US Copyright Office under the old 1909 Copyright Act, or whether it should also extend to cover features such as backing vocals, background sounds of a party, a falsetto lead vocal and the percussion, all of which were missing from the sheet music but could be heard on the sound recording of Got To Give It Up.
In the end, the judge decided that an edited version of the sound recording should be produced excluding those elements not contained in the sheet music to allow the jury to hear only the copyrighted elements of the song. This came as a blow to the Gaye family who had sought to rely on the additional elements as being key similarities between the tracks. Gaye’s lawyers have since raised concerns that, if this precedent is followed, it could expose older music to flagrant copyists. However, we will have to continue to monitor this case closely before the full ramifications of the judge’s direction can truly be guessed at.