The "Blurred Lines" of the Law

Blurred LinesOn 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.

I teach Music Copyright at Duke Law School. Before this verdict, we staged a mock trial on the Blurred Lines case. After we finished hashing out the detailed legal and musicological arguments, I asked the class, based on the law, which side should prevail. They offered a unanimous verdict for Thicke. Then I asked who they thought would prevail. The answer was the opposite—based on their familiarity with jury trials, they predicted that Gaye’s heirs would win. (They were right on both counts.)

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. That’s how creativity works: new musicians build on the genres and styles that preceded them. There are countless similar-sounding songs. 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. 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. Recurrence is not therefore an inevitable badge of plagiarism.”

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. 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.

Copyright 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. (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. 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. Many of the musical elements common to “Blurred Lines” and “Got To Give It Up” fall into these unprotectable categories.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

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. 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. The core elements of the compositions – the melody and harmony in each song, for example – are not substantially similar.

So how did the jury find copyright infringement? One possibility is that the test for copyright infringement in the Ninth Circuit (the jurisdiction that includes Los Angeles) skewed their analysis. Under Ninth Circuit law, the ultimate determination is called the “intrinsic” test, where jurors are asked whether “the ordinary, reasonable listener would conclude that the total concept and feel” of the works in question is “substantially similar.” It is very difficult to compare “total concept and feel” without erroneously taking into account all of the unprotectable elements mentioned above. Not surprisingly, this standard has been criticized by copyright scholars and rejected by other legal jurisdictions.

Another possibility is that well-meaning jurors were influenced by factors that have nothing to do with the question of copyright infringement. Robin Thicke certainly did not show well during the litigation – he offered inconsistent testimony, appeared to take credit for material he did not write, and admitted to the copious use of alcohol and prescription drugs. But this case was not about Thicke’s character. If there were insufficient similarities between the two songs at issue, then there was no copyright infringement; none of his other misdeeds can change that. Also, if consumption of alcohol and drugs makes an artist a copyright infringer, one shudders to think what would be left of American popular music.

In the end, the question is one of blurred legal lines. In order to promote creativity, copyright law depends on a careful balance between rights that stimulate creativity, and freedoms that preserve access to the raw materials that artists need to create in the first place. The “scenes à faire” doctrine is an example of such a freedom – anyone can use the indispensable building blocks of a genre. This verdict skewed the balance between rights and freedoms in a way that would severely stifle musical creativity. If musicians throughout history were not free to capture the “groove” or style of another song, and had to avoid channeling their influences for fear of a copyright lawsuit, then much of the music we love might not exist. Let’s hope the legal lines are not irrevocably blurred.

As of this writing, the #1 hit on Billboard’s Hot 100 chart is “Uptown Funk” (by Mark Ronson, Bruno Mars, and others). As its name suggests, it deliberately – and successfully – evokes the sound of early ’80s funk and R&B. Could a successful copyright lawsuit be brought against “Uptown Funk”? As a copyright lawyer, I would say “no,” but poorly framed standards like the Ninth Circuit’s intrinsic test and decisions such as the “Blurred Lines” verdict suggest otherwise. (Listen to one commentator’s examples of artists who could bring a copyright infringement lawsuit against “Uptown Funk” here.) I’m glad Mark Ronson wasn’t dissuaded from writing this funk anthem because of the prospect of a lawsuit. Let’s hope the next Mark Ronson, who will have heard about the “Blurred Lines” case, feels as brave. For that matter, I’m glad that Marvin Gaye was free to build – brilliantly – on his inspirations. (Indeed, one wonders if he would have brought this lawsuit if he were still alive. I doubt it.)

Copyright’s raison d’être is to promote artistic progress. This verdict does the reverse. It is being appealed, and should be overturned.

– Jennifer Jenkins

1 You can read a fascinating history of the chain of musical borrowing culminating in a single song in “I Got a Mashup,” from James Boyle, The Public Domain (Yale University Press, 2008).

2 Mere “ideas” – such as the idea in both songs’ lyrics of wanting women to “give it up” – are also unprotectable, but in practice it is hard to delineate a musical idea.

3 Expert witnesses for Marvin Gaye’s heirs made much of these scattered musical similarities. Some of the claimed similarities were as banal as the recurrence of an A7 chord. Even the claims of more extensive similarities were not compelling. One of the key examples presented to indicate copyright infringement involved five alleged similarities in the music that accompanies the lyrics I used to go out to parties in “Got to Give It Up” and And that’s why I’m gon’ take a good girl in “Blurred Lines.” These alleged similarities were: 1) both phrases repeat their starting tone a few times (hardly unusual); 2) both contain – though in different places and with different rhythms – successions of notes in common (on the scale, 5-6-1 followed later by 1-5) (also not unusual); 3) the first six notes are a succession of eighth notes (unremarkable); 4) the 1-5 mentioned before is part of a pitch drop called a melisma at the end of the lyrical phrase (very common); and 5) similar melodic contours (disputable). Not only can these elements be found in other songs, but, as a competing expert witness pointed out, the overall melody, harmony, and rhythm in these “signature phrases” are different, and only one note has the same pitch and placement. Moreover, similar pitches, without more, do not prove copyright infringement – as my colleague Professor Anthony Kelley from Duke’s music department points out, “Twinkle, Twinkle Little Star” and “It’s a Wonderful World” have similar pitch sequences. They’re not substantially similar songs.