Is the Line Between “Blurred Lines” and “Got to Give It Up” Really That Blurry?

By Laura Fleming

Editor’s Note: This blog was written prior to the settlement of the case being addressed.

When Robin Thicke sang, “I hate these blurred lines” in his latest song, “Blurred Lines,” he probably wasn’t talking about the blurry line between his hit single and Marvin Gaye’s “Got to Give It Up.” Thicke released his song this past summer, while Gaye, now deceased, released his song in 1977.[1] Gaye’s heirs are currently accusing Thicke, along with “Blurred Lines” co-writers Pharrell Williams and “T.I.” Clifford Harris Jr., of copyright infringement in a California court.[2]

The heirs of Gaye included a report by a musicologist in the filing of their lawsuit.[3] The musicologist identified a “constellation of at least eight substantially similar compositional features between the two works.”[4] 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.”[5]

Under the Federal Copyright Act, in order to establish a claim for copyright infringement, the plaintiff must show that “he or she owns the copyrighted creation, and that the defendant copied it.”[6] 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 “substantially similar.”[7] In order to prove “access,” the plaintiff must show that the defendant had an opportunity to listen to and copy the plaintiff’s song.[8] After that, “substantial similarity” exists where “an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.”[9]

However, if the plaintiff cannot prove “access,” illustrating that the two works are “strikingly similar” will result in victory.[10] Accordingly, “striking similarity” exists where “the proof of similarity in appearance is ‘so striking that the possibilities of independent creation, coincidence and prior common source are, as a practical matter, precluded.’”[11] However, unless the plaintiff can prove actual copying, proof of “independent creation” wholly negates a claim of copyright infringement.[12]

Still, proving copyright infringement in the area of musical composition is very difficult, because “substantial similarity is often an extremely close question of fact.”[13] In a similar case of copyright infringement, the composer of “Come-Up” accused the composer of “Betcha” of copying a repeating 3–note motif, or ostinato, which served as the fundamental rhythmic track to his song.[14] An expert concluded “the pattern [of Betcha] is identical (100%) to that in ‘Come Up.’”[15] However, the court held that there were “significant dissimilarities” between “Come Up” and “Betcha,” and the ostinato only accounted for 33% of the song.[16] Thus, combined, these factors weighed heavily enough against the plaintiff for the court to grant the defendant’s motion for summary judgment.[17]

As for “Blurred Lines,” during an interview with a magazine, Thicke claimed that he told Pharrell that he “wanted to do something kinda like Marvin Gaye’s ‘Got To Give It Up.’”[18] While this statement is likely insufficient proof of direct copying, it may satisfy the first prong of the copyright test, requiring access to Gaye’s song. However, as the Watt case showed, “substantial similarity” is going to be the difficult for Gaye’s estate to prove. While many journalists wrote about the similarity between the songs after Thicke released “Blurred Lines,” if Thicke can prove “independent creation” he will not be liable for copyright infringement.[19] This is because, even if the musical arrangement accompanying the “hey, hey, hey” verse is exactly the same as Gaye’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 Gaye’s song and the remainder of “Blurred Lines,” which will greatly help Thicke’s claim of “independent creation.”

Therefore, as past practice indicates, it is unlikely that Gaye’s estate will succeed on its copyright infringement claim against Thicke.