A recent U.S. decision relating to the song Blurred Lines has attracted significant publicity but raises some concerns.
The Facts
Blurred Lines is a musical composition written and performed by Robin Thicke, Clifford Harris, Jr. and Pharrell Williams (the “Thicke Parties”) that was released in 2013. The song was an immense commercial success and on a world-wide basis became number 1 in at least twenty-five countries.
The authors publically said that the song had been inspired by the Marvin Gaye song Got to Give it Up. The song became the subject matter of a legal dispute between the family of Marvin Gaye and the Thicke Parties and others concerning whether the song infringed the copyright subsisting in Got to Give it Up.
The Proceedings
In August of 2013, The Thicke Parties filed a complaint in the United States District Court for the Central District of California seeking a declaration that Blurred Lines did not infringe the copyright subsisting in Got to Give it Up. The Gaye family (the “Gaye Parties”) responded by asserting a counterclaim alleging infringement of copyright.
In February of 2015 the trial proceeded for seven days before a jury. At the trial the Gaye family relied on the evidence of a musicologist who was designated as an expert as well as other evidence.
The opinion of the musicologist related to a number of commonalities in the two works, including the following:
- Theme X, which was a four note sequence of notes that made up the melody of Got to Give it Up and which was said to be mirrored in a four note sequence in Blurred Lines;
- The base melodies which were said to share common elements;
- Keyboard part for Got to Give it Up, which was based on an extrapolation from the musical notation which indicated rhythms of harmonic parts, was said to be similar;
- The lyrics, and the use of “word painting” or the pairing of musical elements with the lyrics. Both songs were said to make similar use of the words “up”, “down”, “shake” and “round”. In particular, in each song the scale degree moves up after the word “up” is used and down after the word “down” is used.
- The hook or the passage that was written to catch and maintain the interest of listeners was said to be similar in both songs.
Jury instruction #43 which was read to the jury was as follows:
In order for the Gaye Parties to meet their burden of proof to show by a preponderance of the evidence that there is substantial similarity between…the Gaye Parties’ work and one of the Thicke Parties’ works, the Gaye Parties must show that there is both substantial “extrinsic similarity” and substantial “intrinsic similarity” as to the pair of works.
Extrinsic similarity is shown when two works have a similarity of ideas and expression as measured by external, objective criteria. To make this determination, you must consider the elements of each of the works and decide if they are substantially similar. This is not the same as “identical”. There has been testimony and evidence presented by both sides on this issue, including by expert witnesses, as to such matters as the so-called “Signature Phrase”, hook, “Theme X”, bass melodies, keyboard parts, word painting, lyrics, rap v. parlando. The Gaye Parties do not have to show that each of these individual elements is substantially similar, but rather that there is enough similarity between the work of the Gaye Parties and the allegedly infringing work of the Thicke Parties to comprise a substantial amount.
Intrinsic similarity is shown if an ordinary, reasonable listener would conclude that the total concept and feel of the Gaye Parties’ work and the Thicke Parties’ work are substantially similar.
In considering whether extrinsic or intrinsic similarities are substantial, you may consider whether portions allegedly copied are either qualitatively or quantitatively important to the Gaye Parties’ work. A portion of a work is qualitatively important if, regardless of its size, it is shown to be very important to that work. The copying of a qualitatively important portion of a work may support a finding of substantial similarity even if that portion is very short. A portion of a work is quantitatively important if it comprises a significant portion of the work.
On March 10, 2015 after deliberating for two days the jury returned a verdict. It was found on a preponderance of evidence that the plaintiffs had infringed the copyright in the musical composition Got to Give it Up.
Damages were awarded in excess of $3.1M as well as profits in excess of $350,000. The court refused to grant an injunction but allowed a request for an ongoing royalty of 50% of the songwriter and publishing revenues of Blurred Lines. The royalty began to run on the date that the judgment was entered.
The case and the result that had been arrived at has been criticized in the U.S. on the basis that juries are not musicologists and that despite careful instructions from the presiding judge they are influenced by broader fairness issues. In addition, it has been suggested that the jury was overly influenced by the contrived and stripped down versions of the two songs presented by the experts.
It has been argued that while this approach might be acceptable between the parties to the lawsuit it is inappropriate on a broader scale since overly broad copyright protection has a negative impact on creativity.
The Canadian Position
While there are some differences the basic rules are similar in Canada. The Copyright Act provides that a “musical work” means “any work or music or musical composition, with or without words and includes any compilation thereof”. As a result, for musical works created subsequent to August 31, 1993 there is no requirement that a work be reduced to writing. This means that somewhat broader protection is available in Canada but in most cases the work will be evidenced by musical notation.
To constitute an infringement of copyright, two elements must be present. First, there must be sufficient objective similarity between the infringing work and the copyright work or a substantial part of it for the former to be properly described as a reproduction or adaption of the latter. Second, the copyright work must be the source from which the infringing work has derived. There must be a casual connection between the copyright work and the infringing work.
The vast majority of cases involving copyright and musical works which proceed to trial are heard by a judge alone rather than a jury.
Comment
The case is unusual. The Thicke Parties must have felt strongly that Blurred Lines was not infringing since they brought an action for a declaration it was not infringing. Presumably they acted on the basis of objective legal advice in adopting this position. However, when the case proceeded before a jury the result was different.
John McKeown
Goldman Sloan Nash & Haber LLP
480 University Avenue, Suite 1600
Toronto, Ontario M5G 1V2
Direct Line: (416) 597-3371
Fax: (416) 597-3370
Email: mckeown@gsnh.com
These comments are of a general nature and not intended to provide legal advice as individual situations will differ and should be discussed with a lawyer.