Erin M. Jacobson, Esq.

Summary of the Legal Saga

“Blurred Lines” by Robin Thicke, Pharrell Williams, and Clifford Harris, Jr. was released in March of 2013.  It quickly caught attention for it’s catchy hook; fun, danceable beat; and seeming similarity to Marvin Gaye’s “Got to Give It Up.”  (For ease of reading, I have referred to the writers of “Blurred Lines” as “Thicke,” but please note that all writers of “Blurred Lines” are included in the lawsuits discussed.  Instances involving Robin Thicke individually will be referenced as “Robin Thicke.”)

In May of 2013, Robin Thicke gave an interview to GQ magazine where he talked about how “Blurred Lines” came about, stating:

 “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.’ Then he started playing a little something and we literally wrote the song in about a half hour and recorded it . . . . Him and I would go back and forth where I’d sing a line and he’d be like, ‘Hey, hey, hey!’ We started acting like we were two old men on a porch hollering at girls like, ‘Hey, where you going, girl? Come over here!’”[1]

On July 9, 2013, Robin Thicke told Billboard:

“Pharrell and I were in the studio making a couple records, and then on the third day I told him I wanted to do something kinda like Marvin Gaye’s ‘Got To Give It Up,’ that kind of feel ’cause it’s one of my favorite songs of all time.”[2]

At the beginning of August 2013, the song “Blurred Lines” and the album of the same name both reached No. 1 on the charts.  However, the success was not without turmoil.  There was a lot of controversy floating around that Marvin Gaye’s estate (managed by Gaye’s children) felt the song “Blurred Lines” infringed the copyright of “Got to Give It Up” and there was also talk of infringement of Funkadelic’s “Sexy Ways.”[3]  News reports stated that Thicke had offered the Gaye Estate a “six-figure settlement” to quash the case, but the family turned it down.[4]  In mid-August, attorneys for Thicke filed a lawsuit to win a declaration that “Blurred Lines” did not infringe on the copyright of “Got to Give It Up” and “Sexy Ways.”[5] Thicke took the approach that “Blurred Lines” evoked the same “sound”[6] as “Got to Give It Up,” but that it did not infringe any copyrights of Gaye’s composition.  Thicke accused the Gaye Estate of trying to claim ownership of an entire genre, as opposed to a specific work.[7]

“Sexy Ways” writer and Funkadelic leader George Clinton is on Thicke’s side.  He tweeted “No sample of #Funkadelic‘s ‘Sexy Ways’ in @robinthicke‘s ‘Blurred Lines’ … We support @robinthicke @Pharrell!”[8]

In further support of Thicke, George Clinton announced on Twitter that he was taking his position to TMZ.[9]   On TMZ, Clinton said he wishes he wrote “Blurred Lines,”[10] and admitted that in comparing Thicke’s composition to “Sexy Ways” he did “hear a similar tone of voice, style, and a few notes, but not enough to sue.”  Clinton also made it clear that it was his publisher, Bridgeport Music, who was suing on behalf of Clinton and that Clinton himself did not support the suit.[11]  When asked about the similarity between “Blurred Lines” and “Got to Give It Up,” Clinton saw where people would make the correlation, but said he would testify in defense of Thicke.[12]  Since then, mentions of any infringement of “Sexy Ways” have quieted.

In October 2013, the Gaye Estate (minus Marvin Gaye III)[13] responded aggressively to Thicke’s lawsuit.  The Estate not only maintains its claim that “Blurred Lines” infringes on the copyright of “Got to Give It Up,” but also has filed another claim asserting that Robin Thicke’s song “Love After War” infringes on Gaye’s song “After the Dance.”[14]  The Gaye Estate also argues that Robin Thicke’s song “Make U Love Me” is similar in theme to Gaye’s song “I Want You,”[15] although the Estate did not add this supposed infringement to the list of formal claims in the lawsuit.  The Gaye Estate even said that Robin Thicke has a “Marvin Gaye fixation.”[16]

In addition to going after Thicke, the Gaye Estate is also dragging EMI April (now owned by Sony/ATV) into the dispute.[17]  EMI is the music publisher for “Blurred Lines” and also the music publishing administrator for Marvin Gaye’s catalogue.[18]  The Gaye Estate accuses EMI of having a conflict of interest since it represents both songs, and chastises EMI for failing to bring a suit to protect “Got to Give It Up” and for trying to intimidate the Gaye Estate from bringing a suit themselves.[19]  This puts EMI in a very difficult position as one wonders how the company could assert complete loyalty to both songs, from which it stands to make a profit.  EMI understandably doesn’t want to rock the boat, but after this messy fight it may lose one or both clients as well as one or both songs – plus the related profits.

The Gaye family now also claims there was never a six-figure settlement offered to them and that was a false story planted in the press to make the Gaye family seem unreasonable.[20]

Thicke’s lawyer, Howard King, released a statement to The Hollywood Reporter saying the Gaye Estate actually has no standing to sue on this matter and that three musicologists have reported that while the songs sound similar, their notes are different.[21]  However, Judith Finell, another well-known musicologist issued a report stating: “The two songs’ substantial similarities surpass the realm of generic coincidence reaching to the very essence of each work,” and offers a preliminary conclusion that “‘Blurred [Lines]’ was not created independently of ‘[Got to] Give It Up.’”[22]

On November 26, 2013, Marvin Gaye III filed his own lawsuit for infringement of “Got to Give It Up” by “Blurred Lines’” and infringement of “After the Dance” by “Love After War.”[23]  Unlike his siblings, he did not include a claim against EMI.  He did also mention the “Make U Love Me” / “I Want You” similarity, as well as the undeniable relationship between Robin Thicke’s song “Million Dolla Baby” and Gaye’s “Trouble Man.”[24]

Analysis

Robin Thicke’s interviews with GQ and Billboard are not going to bode well for his position in this case.  Anytime one says that a certain work inspired his newly created work it is going to fuel the fire of the other side’s infringement argument.

Thicke’s primary filing was a surprising move, as usually the party accusing infringement files first.  In this case, the writers sought to declare their innocence before the other parties filed against them.  It’s an interesting approach and I applaud Thicke’s attorneys for their proactive nature.  However, that first filing probably came across to many, or at least to Gaye’s children, as an aggressive move that elevated the level of the dispute.  It may also look suspicious to some observers when a supposedly innocent party has to loudly announce his innocence despite the law providing for a person’s innocence until proven guilty.

The Gaye family retaliated hard and seems to want to show everyone that they are taking this seriously and won’t go down without a fight.  Some people have asked me whether this will still settle out of court.  The truth is that it might – one never knows the direction a dispute like this will take.  However, I think for that to happen the monetary figure would have to be substantially large and might also involve the Gaye Estate gaining all or a portion of the “Blurred Lines” copyright.  Aside from that, I think the Gaye family’s stance portrays an image that they are more than willing to go to trial if necessary and will battle this issue until the end.

As stated above, at least three of the musicology reports are supposedly in Thicke’s favor, but have not been released.  Conversely, Finell’s report is not in Thicke’s favor.  In lay terms, Finell’s preliminary conclusion means “Blurred Lines” does infringe on “Got to Give It Up.”  (Note:  This is my interpretation of Finell’s report and based upon the contents of the report alone.  While I do know Ms. Finell, we did not discuss the details of the case or her report.)

Under copyright law, two similar works can be created independently of each other without infringement.  For example, two independent musicians on opposite sides of the country could create original and copyrightable songs that sound very similar to each other, without knowing each other or ever hearing each other’s music.  After all, there are only so many notes and chords that can be played.  However, in an infringement suit, here are some elements a court would examine:

1.  Copying

 One would have to show that the accused infringer directly copied the prior work.  This can be difficult to prove and is a point of contention in this case since Thicke claims they were only trying to evoke a sound[25] and did not expressly copy Gaye’s song.  However, Robin Thicke’s interviews with GQ and Billboard don’t help their case since Robin Thicke specifically said that “Got to Give It Up” was his favorite song[26] and he wanted to create “something like that.”[27]

2.  Access:

Even if direct copying cannot be proven, courts will assume that copying did occur if it is shown that the accused infringer had access to the supposedly infringed composition.  This could actually be a slam dunk point for the Gaye family since Robin Thicke admitted it is his favorite song in the GQ and Billboard interviews.

However, even if Robin Thicke did not admit his love for “Got to Give It Up,” the song’s fame and prominence in pop culture would satisfy this element.  The song has been played on the radio and is widely known, so the court will make the assumption that Thicke has heard it simply because it is a famous song.

Here’s another real world example:  In Bright Tunes Music Corp. v. Harrisongs Music, Ltd.,[28] George Harrison’s song “My Sweet Lord” was deemed to infringe on the song “He’s So Fine” recorded by The Chiffons in 1962.[29]  The court didn’t require actual proof that Harrison had heard  “He’s So Fine” before; it relied on the fact that “He’s So Fine” had the top position on the Billboard charts in the U.S. for five weeks and hit No. 12 in England in 1963[30] – coincidentally at the same time The Beatles were becoming famous.[31]  The court concluded that Harrison unconsciously plagiarized “He’s So Fine” when he composed “My Sweet Lord” because “his subconscious knew [the musical combination of notes] had worked in a song his conscious mind did not remember.”[32]  The court went on to further conclude that it did not believe Harrison deliberately copied the song,[33] but ruled against him anyway because access to “He’s So Fine” was assumed due to its fame and the two songs had enough similarities to satisfy the court.[34]  For those of us well versed in Beatles trivia, it is also known that the lads were fans of the early-60s girl groups and Phil Spector’s production style, later hiring Spector to produce the album “Let It Be.”  In an ironic and amusing turn of events, Harrison eventually purchased the copyright to “He’s So Fine,” making him the owner of both compositions.

3.  Substantial Similarity:

Another factor to look at is whether a lay person (i.e. a regular music listener) would view the two songs as similar.  Again, Finell’s report shows that the two compositions are very similar to each other, and much internet buzz has shown that most listeners are immediately able to pick up on the similarity (provided they are familiar with Gaye’s song).

To further complicate matters, it seems Robin Thicke has a pattern of releasing songs that sound like songs by Marvin Gaye.  A simple online search yields several websites showing the undeniable similarities between “Million Dolla Baby” and “Trouble Man,”[35] as well as the other three mentioned compositions.  However, Robin Thicke had permission from the Gaye Estate for “Million Dolla Baby” and the song credits list Gaye as a writer.[36]  Therefore it is probable the family is receiving royalties for that song and thus would not sue for that composition.[37]  What bothers me as a music appreciator is that I like some of Robin Thicke’s music.  With this pattern cropping up of multiple songs sounding like Gaye, I think it makes him lose credibility as an artist/writer and may end up hurting his career.  There is already talk within the industry that he may not win awards this season because of this legal battle.  It would be sad to see him lose future success because of this emerging pattern.

The first time I heard “Blurred Lines,” I realized the similarity to “Got to Give It Up,” but personally felt that it was evoking a sound more than direct infringement.   What strengthens the “evoking a sound” argument is the number of other songs that also have similar elements to both “Blurred Lines” and “Got to Give it Up.”  “Sexy Ways” was released in 1974.  “Got to Give It Up” was released in 1977.  The Jacksons then released “Shake Your Body (Down to the Ground)” in 1978, which has a similar “woo!” to “Blurred Lines.”  Michael Jackson’s 1979 hit “Don’t Stop ‘Til You Get Enough” has yet another similar “woo!” as well as a similar rhythm and use of cowbell as “Blurred Lines.” Marvin Gaye didn’t sue Michael or any of the other Jacksons for these songs, which made me wonder why Thicke is now a target for “Blurred Lines.”  Also, all of the songs just mentioned (with the exception of “Sexy Ways”) are from 1977-1979.   The 1970s was a distinct era and had a recognizable sound that “Blurred Lines” does evoke.

Some of my colleagues think it would be a travesty if federal judges did not police copyright more strictly and rule against Thicke in this case, fearing that it could allow more cases of actual infringement to slide through the cracks, or worse, be deemed acceptable and set a precedent for others to willfully infringe.  On the other hand, part of the purpose of copyright is to create a benefit or award to creators[38] of “original works of authorship,”[39] but that protection is also limited in duration.  Copyright is not meant to stifle creativity, so I think the challenge in this case is balancing the protection of existing compositions without stifling the creation of new works.

There are a variety of possible outcomes in this case and I will continue to provide my analysis as more details emerge.