Three years ago, a jury awarded Marvin Gaye’s family more than $7.3 million for copyright infringement. The jury found that Robin Thicke and Pharrell Williams’ 2013 hit “Blurred Lines” had too closely copied Marvin Gaye’s 1977 song “Got to Give It Up.”
Thicke and Williams appealed, arguing, among other things, that there is no similarity between the two songs. The appellate court was not convinced. A few weeks ago, it ruled in favor of Gaye’s family on this issue.
In its opinion, the 9th Circuit pointed out that Thicke and Williams readily admitted they had access to “Got to Give It Up,” so the only real question was whether protected elements of the two songs are “substantially similar.”
The court went on to explain that a two-part test is used to evaluate substantial similarity: an extrinsic test and an intrinsic test. For a jury to find substantial similarity, there must be evidence of similarity in both tests.
The extrinsic test is objective and looks at whether the two works share “a similarity of ideas and expression as measured by external, objective criteria.” Application of this test requires “analytical dissection” of a work and expert testimony.
The intrinsic test, on the other hand, is subjective, asking whether “the ordinary, reasonable person would find the total concept and feel of the works to be substantially similar.” Even if the individual similarities seem trivial, the jury can conclude that the overall impact is one of substantial appropriation.
The court stated that a jury’s decision of similarly should be reversed “only when there is an absolute absence of evidence to support the jury’s verdict.” Noting that two experts testified to numerous objective similarities between “Blurred Lines” and “Got to Give It Up,” it held that it could not say there was such an “absolute absence of evidence.”
Williams testified that he did not, consciously or subconsciously, copy “Got to Give It Up.”
He said he grew up with “Got to Give It Up,” was inspired by it and “must’ve been channeling that feeling, that late-’70s feeling.” Earlier he had told journalists that he was “trying to pretend” he was Gaye when composing the song.
Williams and Thicke are credited as co-writers of the song, but Thicke testified that he did not actually help write “Blurred Lines.” In 2013, though, he told GQ Magazine that “Pharrell and I were in the studio and I told him that one of my favorite songs of all time was Marvin Gaye’s ‘Got to Give It Up.’ I was like ‘Damn, we should make something like that, something with that groove.'”
Because the Gaye family doesn’t own the rights in the commercial recording of “Got to Give It Up,” the trial judge instructed the jurors to compare the two songs only on the basis of their “sheet music” versions. Musicologists testified about similarities in signature phrase, hook, keyboard-bass interplay, lyrics and theme of the songs.
While ideas themselves are not protected by the copyright laws, the expression of those ideas often is, and this case serves as a reminder of the risks involved when using the copyrighted works of others to inspire one’s own works.
Problems can-and do-arise not just with music, but with other creative efforts, including artwork, literature and movies. Unfortunately, the copyright law has no firm line distinguishing between inspiration and infringement.
Please feel free to contact us if you have any questions about copyright.
