By Laura Fleming
Editor’s Note: This blog was written prior to the settlement of the case being addressed.
When Robin Thicke sang, â€œI hate these blurred linesâ€ in his latest song, â€œBlurred Lines,â€ he probably wasnâ€™t talking about the blurry line between his hit single and Marvin Gayeâ€™s â€œGot to Give It Up.â€ Thicke released his song this past summer, while Gaye, now deceased, released his song in 1977. Gayeâ€™s heirs are currently accusing Thicke, along with â€œBlurred Linesâ€ co-writers Pharrell Williams and â€œT.I.â€ Clifford Harris Jr., of copyright infringement in a California court.
The heirs of Gaye included a report by a musicologist in the filing of their lawsuit. The musicologist identified a “constellation of at least eight substantially similar compositional features between the two works.” The report claimed substantial similarity between “[t]he signature phrase, vocal hook, backup vocal hook, their variations, and the keyboard and bass lines” and the songs “departures from convention such as the unusual cowbell instrumentation, omission of guitar and use of male falsetto.”
Under the Federal Copyright Act, in order to establish a claim for copyright infringement, the plaintiff must show that â€œhe or she owns the copyrighted creation, and that the defendant copied it.â€ However, if the plaintiff does not have direct evidence of copying, the plaintiff may still prevail by showing that the defendant had access to the song and that the songs are â€œsubstantially similar.â€ In order to prove â€œaccess,â€ the plaintiff must show that the defendant had an opportunity to listen to and copy the plaintiff’s song. After that, â€œsubstantial similarityâ€ exists where â€œan average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.â€
However, if the plaintiff cannot prove â€œaccess,â€ illustrating that the two works are â€œstrikingly similarâ€ will result in victory. Accordingly, â€œstriking similarityâ€ exists where â€œthe proof of similarity in appearance is â€˜so striking that the possibilities of independent creation, coincidence and prior common source are, as a practical matter, precluded.â€™â€ However, unless the plaintiff can prove actual copying, proof of â€œindependent creationâ€ wholly negates a claim of copyright infringement.
Still, proving copyright infringement in the area of musical composition is very difficult, because â€œsubstantial similarity is often an extremely close question of fact.â€ In a similar case of copyright infringement, the composer of â€œCome-Upâ€ accused the composer of â€œBetchaâ€ of copying a repeating 3â€“note motif, or ostinato, which served as the fundamental rhythmic track to his song. An expert concluded â€œthe pattern [of Betcha] is identical (100%) to that in â€˜Come Up.â€™â€ However, the court held that there were â€œsignificant dissimilaritiesâ€ between â€œCome Upâ€ and â€œBetcha,â€ and the ostinato only accounted for 33% of the song. Thus, combined, these factors weighed heavily enough against the plaintiff for the court to grant the defendantâ€™s motion for summary judgment.
As for â€œBlurred Lines,â€ during an interview with a magazine, Thicke claimed that he told Pharrell that he â€œwanted to do something kinda like Marvin Gaye’s ‘Got To Give It Up.â€™â€ While this statement is likely insufficient proof of direct copying, it may satisfy the first prong of the copyright test, requiring access to Gayeâ€™s song. However, as the Watt case showed, â€œsubstantial similarityâ€ is going to be the difficult for Gayeâ€™s estate to prove. While many journalists wrote about the similarity between the songs after Thicke released â€œBlurred Lines,â€ if Thicke can prove â€œindependent creationâ€ he will not be liable for copyright infringement. This is because, even if the musical arrangement accompanying the â€œhey, hey, heyâ€ verse is exactly the same as Gayeâ€™s, as in the Watt case, this verse only accounts for less than half of the song, which might be enough for the court to rule for Thicke. Also, like Watt, there is much dissimilarity between Gayeâ€™s song and the remainder of â€œBlurred Lines,â€ which will greatly help Thickeâ€™s claim of â€œindependent creation.â€
Therefore, as past practice indicates, it is unlikely that Gayeâ€™s estate will succeed on its copyright infringement claim against Thicke.
 Marvin Gaye Heirs Sue â€˜Blurred Linesâ€™ Artists, Alan Duke, http://www.cnn.com/2013/10/31/showbiz/blurred-lines-lawsuit (last visited Jan. 13, 2014).
 Jones v. Blige, 558 F.3d 485, 490 (6th Cir. 2009).
 Benson v. Cocaâ€“Cola Co., 795 F.2d 973, 974 (11th Cir.1986).
 Jones, 558 F.3d at 491.
 Watt v. Butler, 744 F. Supp. 2d 1315, 1322 (N.D. Ga. 2010).
Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1248 (11th Cir.1999).
Watt, 744 F. Supp. 2d at 1323.
 Jones, 558 F.3d at 490.
 Watt, 744 F. Supp. 2d at 1318.
 Marvin Gaye, supra note 1.