Pharrel Williams and Robin Thicke, behind 2013’s best-selling song, “Blurred Lines,” have finally dropped the case against Marvin Gaye’s family and copyright holders for his music after the deadline for filing a U.S. Supreme Court judgment expired. Thus, the judgment of the Court of Appeals for the Ninth Circuit of March 18, 2018 is final. Gaye’s family has thus been accepted that the song “Blurred Lines” constituted a copyright infringement of Marvin Gaye’s “Got To Give It Up”. The verdict has given rise to heated debate over the extent of copyright protection of musical works.
The course of the case
In 1976, Marvin Gaye recorded the song “Got To Give It Up” in his studio. “Got To Give It Up” was number 1 on the Billboards Hot 100 in 1977 and is still popular today. In June 2012, Pharrell Williams and Robin Thicke wrote and recorded the song “Blurred Lines”. “Blurred Lines” was the best-selling single worldwide in 2013. After hearing “Blurred Lines”, Gaye’s family made a claim of copyright infringement of “Got To Give It Up” to Williams and Thicke. After unsuccessful negotiations between the parties, Willams and Thicke filed a lawsuit with a local court seeking recognition that there was no infringement of the “Got To Give It Up” rights. Gaye’s family disputed this and made an independent claim that “Blurred Lines” infringed their copyright on “Got To Give It Up”. The court upheld Gaye’s family, and on March 18, 2018, the Court of Appeals partially affirmed the ruling. In particular, the Court of Appeal upheld the violation of the Gaye family’s copyright.
The case was to be decided under the US Copyright Law of 1909
Since the song “Got To Give It Up” was created in 1976, the protection must be assessed on the basis of the current copyright law US Copyright Act of 1909. According to this law, only written works in the form of text and nodes are protected by law. On the other hand, the sound recording itself was not protected and the court therefore decided that the sound recording, as well as the sound recording of “Blurred Lines”, should not be included in the violation assessment. Audio recordings were first protected by the Copyright Act of 1976, which came into force in 1978.
In US infringement cases involving imitations of protected music works, a case-law has been developed that generally aims to determine whether there is a significant similarity between two works, where the judgment “Three Boys Music” is one of the leading judgments. Copyright is the distinction between situations in which the artist has great and little freedom in his creative work, respectively. If the artist has a great deal of freedom, the work is considered to have a strong distinctive or closer “wide range of expression”, and thus enjoy a protection that is limited not only to identical works in which whole or protected fragments are directly plagiarized, but also to works with a considerable similarity. Music works usually enjoy wide protection, as artistic freedom is great
The test consists of two steps. An objective and a subjective part in which the court, on the basis of a comprehensive assessment of all relevant matters, delimits the similarity between two musical works. The actual comparison of two works is carried out partly by the use of expert expert witnesses and partly by the use of lay judges. The objective part of the test consists of sorting out all non-protected elements and then comparing the ideas and expressions of the works such as basses, keyboards, signature phrases and hooklines based on objective criteria. The subjective part consists in assessing whether a common-sense person would consider the two works comparable. Furthermore, in practice, relaxed requirements apply to the objective part of the test, if the creators of the newer work have been familiar with the older work and have proven to be inspired by it in the production of the newer work. The inspiration need not be conscious, but may well be unconscious.
The test consists of comparing nodes
One of the important points in the case was whether the sound recordings could be included in the violation assessment under the 1909 Act.
The court found that “Got To Give It Up” had “a wide range of expression” and could therefore be subject to the significance test. In that regard, the court stated that there were more lenient requirements for the objective part, with Williams and Thicke acknowledging at first instance to be inspired by “Got To Give It Up” when they composed “Blurred Lines”. Referring to the Copyright Act of 1909, the Court of Appeals – like the District Court – stated that the law did not allow the sound recordings to be included in the violation assessment, and they held that only the relevant relevant parts of the works should be compared. After that, the court found that the District Court had not erred in assessing whether there was a significant similarity between the two works and that “Blurred Lines” constituted a violation of “Got To Give It Up”.
A dissenting judge argued