On March 10, 2015, a jury in Los Angeles returned a $7.3 million verdict in favor of the estate of Marvin Gaye against pop icon, Pharrell Williams (The Voice, Happy), and Robin Thicke for copyright infringement. The case involved the famous 1977 hit song by Marvin Gaye and made famous, at least in part, on the classic Saturday AM TV show Soul Train. Intellectual property lawyers and pundits have quite a bit to say about the verdict, its future validity, and implications for innovation in the music industry. Below are 7 things to consider about this case:
(1) DJ Action: Pharell and Thicke filed a preemptive strike type case, known as a declaratory judgment action, asking the court to rule that their song, Blurred Lines, did not infringe the copyright owned by the Marvin Gaye estate. Would the Gay estate have sued for infringement but for being dragged into the DJ action? Probably, but this is a slightly unusual procedural posture for the party receiving the jury award to be in the defensive position.
(2) Sheet Music / Chords / Melodies / Lyrics: The court did not allow the jury to compare the Marvin Gaye version of “Got to Give it Up,” with the Williams / Thicke version of Blurred Lines. Instead, the jury only heard the re-recorded version of Got To Give It Up from the Marvin Gaye sheet music and the real versions of 2013’s hit song of the year, Blurred Lines. The rationale for this is that the copyright belonging to the Gaye estate was in the sheet music and that some elements of the Marvin Gaye version were not subject to copyright protection. As explained by Zosha Millman in her post:
Thus the copyright covering Got To Give It Up does not protect those portions of the song that are common; it protects only those parts of the song that are original to Marvin Gaye. This is a two part inquiry, and the first part is answering the question: “What are the protected original, expressive elements of Got To Give It Up and what are the non-protected elements?”
Was this the correct decision? I do not know, but this procedure for evidence presentation alone shows the myriad ways a party can carry their burden of proof and the burden placed on the trial judge to make decisions on issues that may well be the focus of an appeal of the verdict. As noted by Sulina Gabale and Stacy Marcus in their recent post on the case, the “judge ruled that the Gayes’ copyrights extend[ed] only to the written sheet music, or a ‘deposit copy’ filed with the Library of Congress in 1977, and not to the actual sound recording (which was not registered).” Apparently, the court also believed that the actual Marvin Gaye version may also have influenced the jury because of the fame and status of Marvin Gaye.
(3) Registrations: Arguably, the Gaye estate should have recorded the copyright in the performance of the song as well as the sheet music. Possible take away for recording artists / record labels now is to record / register copyrights in as many medium as you can. While the case is drawing criticism for the jury not hearing the Marvin Gaye song, surely the Gaye estate would have preferred to have sent two copyright claims to the jury, one for the sheet music and the other for the [originally recorded] performance. Did Pharrell and Thicke intend to suggest that the recorded version performed for the jury on the sheet music was performed in such a way to seem more like their song, Blurred Lines? How could Pharrell’s defense team have cross-examined the re-recording performers to prove that?
(4) Credibility: Apparently Thicke testified he was both intoxicated and using vicodin when he recorded the song that Williams had arranged for the two of them to record. Thicke also admitted that their song had the feel of Gaye’s Got To Give It Up and that he was inspired by the Gaye song in making the recording, but concluded he did not infringe. Also, according to the Courthouse News report, Thicke admitted that “Got To Give It Up,” was on his mind when he made the recording. He also testified he overstated his role in the recording in earlier interviews, which likely did not help his defense.
(5) Pop Icons / Trolls: It seems a shame that the super-popular and imminently cool Pharrell would need to be dragged into this dispute with the Gaye estate which he testified he had tremendous respect. To what extent did their respective icon status influence the jury? A standard jury charge requires the jury to treat all persons equally, so here, we have to assume that the jury did that and decided the case on the evidence presented and the jury charges provided. Supposing the Gaye estate had sold the rights to the song and the accompanying copyright in the sheet music to a third-party, for example, a record company, would we then be hearing about this being a copyright troll case? It seems that a troll v. icon is a harder case than icon v. icon.
(6) Stifle Innovation: Will this decision hinder creativity in the music industry as some have alleged? I do not know, but critics of a policy often resort to this tactic in the comments. It seems that all parties likely ended up making out OK in this matter. Thicke admits he was a virtual unknown before Blurred Lines became a pop hit. He is that no more, and the lawsuit will likely only increase his fame / notoriety. According to Courthouse News report before closing arguments:
“Of the $16.6 million in ‘Blurred Lines’ profits, Thicke earned $5.6 million in artist and publishing royalties, Pharrell $5.1 million in producer and publishing royalties, and T.I. got $704,000. The rest went to the record companies behind the platinum single: Interscope, UMG Distribution and Star Trak.”
Regardless, as noted by Zosha Millman, the case presents fear that a song in the same genre with the same feel as the earlier song could be held liable for infringement. Again, we have to rely on the jury charges and the adversarial system here to ferret out any such happenstance infringement.
(7) Fair Use: Did the Pharrell / Thicke defense include a fair use defense, likely it did not as such would suggest they knew they were copying, or being influenced by, the Marvin Gaye song when making the recording. If in fact, an artist is making a tribute to a beloved artist from the past (e.g., Beach Boys’ ‘Surfin USA’ to Chuck Berry’s ‘Sweet Little Sixteen’), this defense could be available, but might also require a license, at least in an abundance of caution it would.
So there may be a good bit more to report on this case, but for now, you can do what the jury was not allowed to do, namely compare:
Marvin Gaye’s performance of Got To Give It Up (Soul Train version)
Williams and Thicke’s ‘Blurred Lines’ (note this may be a different version than what was played at trial)
What is your verdict?
Interested in analyzing other alleged musical copyright infringements? Check out this Youtube Link to “Top 10 Rip Off Songs,” by @watchmojo ranking Blurred Lines as no. 4. Enjoy the stroll down memory lane on the other nine. As a southern boy, my personal favorite on the WatchMojo Top 10 list has to be no. 5, pitting John Fogerty of CCR versus John Fogerty! Another recent musical copyright controversy included Led Zeppelin’s epic tune Stairway to Heaven.
UPDATES: (1) According to the Hollywood Reporter, the Gaye family is now seeking an injunction; and (2) the Gaye family has denied it is considering pursuit of Pharrell for his hit song, Happy.
Music: HEAVY – Marvin Gaye, Pharrell and Thicke, duh, plus Top 10 Rip Off Songs, Beach Boys, Chuck Berry
Legal Links: LIGHT – a few blogs
History: LITTLE – Soul Train!
Pontificating: VERY LITTLE