In a landmark US copyright case a federal appeals court has upheld the $5.3 million judgment against both Robin Thicke and Pharell Williams for infringing Marvin Gaye’s 1977 hit “Got To Give It Up”.
The case may expand the protection granted on musical works, which usually help prevent the unauthorised use of copying lyrics, reproducing a melody in its exact form, or using samples taken from original works.
Following accusations of copyright infringement in 2013, both Thicke and Williams sought a declaration confirming “Blurred Lines” did not infringe Gaye’s copyright.
After over a week at trial in 2015, the judgment was held in favour of Gaye’s estate, and in the final weeks of March this year both Thicke and Williams sought relief in the Ninth Circuit Court of Appeals.
By a two to one vote, Gaye’s work was “entitled to broad copyright protection because musical compositions are not confined to a narrow range of expression”.
As described by dissenting Judge Jaqueline H. Nguyen, the decision has granted Gaye’s work a new protection- “copyright [in] a musical style”.
Whilst both Thicke and Williams have admitted similarities between both tracks, which include use of a cowbell, a high falsetto and a similar overall groove, the works are clearly distinctive, with different hooks and melodies.
The dissenting judge understood this, stating that both tracks were “not objectively similar as a matter of law under the extrinsic test because they differed in melody, harmony, and rhythm, and the majority’s refusal to compare the two works improperly allowed the defendants to copyright a musical style.”
A clear test to establish which elements can and cannot be copied has been difficult to define, with the court noting “there is no one magical combination of factors that will automatically substantiate a musical infringement suit”.
The decision, it seems, was reached due to a procedural issue, as the “defendants waived any challenge to the consistency of the jury’s general verdicts”. However the judgment reversed the original decision in allowing rapper T.I. not to be held liable for infringement.
The effect of the decision could be huge. It provides scope to allow litigants to pursue copyright claims on a more fragile basis of evidence, which need not prove verbatim reproduction, but merely inspiration.
There have been similar suits over the years, including George Harrison’s claim that his melodies in his song “My Sweet Lord” were used in Chiffons’ “He’s So Fine”, and the very recent Lana Del Rey and Radiohead suit, which seems to have settled.
Ultimately the tide may change as to what constitutes copyright protection and what are ingredients are required to prove an infringement claim in music.