On 10 March 2015, singer Robin Thicke's questionable 2013
hit "Blurred Lines" was found by a federal jury in the US
to be a plagiarism of Marvin Gaye's 1977 song "Got to Give
It Up". While some may be glad to see a polarising and often
controversial figure like Thicke be financially penalised, others
are worried about the legal implications that the decision may have
on the music industry.
In this Alert, Partner Hayden Delaney, Associate Michele Davis
and Law Graduate Briar Francis discuss the recent Marvin Gaye
copyright case and its possible impact.
Robin Thicke and co-writer of "Blurred Lines",
Pharrell Williams, were found to have copied the musical content of
Marvin Gaye's "Got to Give It Up".
The jury was asked to consider only the sheet music of both
songs and not the additional sound layers added to each song.
The verdict further highlights the blurred lines in the subtle
legal differences between homage and plagiarism.
The Court Case
On Tuesday, a US Federal jury ruled that Marvin Gaye's 1977
song "Got to Give It Up" had been unintentionally
plagiarised in Robin Thicke's song "Blurred Lines",
released in 2013.
Both Robin Thicke and Pharrell Williams were found to have
infringed Marvin Gaye's copyright as both parties were credited
as the songwriters (although Mr Thicke acknowledged that he had
little to do with the writing process, and only took songwriting
credit out of pride). Singer Clifford Harris Jr., known by stage
name T.I., was not found liable given his short contribution to the
song, which consisted of a rap break.
Mr Thicke and Mr William's lawyers argued that the
similarities between the songs only existed due to the writers'
attempt to emulate an era of music and a generally jovial, upbeat
atmosphere. This argument is a common defence used by musicians or
artists; that a song is a "homage" to an era or another
artist's sound, rather than outright plagiarism. In this case,
this defence was refused by the jury.
In coming to the decision against Mr Thicke and his co-writer Mr
Williams, the jury were instructed to look at the sheet music
alone, when comparing both songs. Thus, the decision was based on
the core of the song, the musical notes and the lyrics of each
song, rather than any additional sounds worked into the song by
producers to create a certain feeling. Some may argue that this
direction was favourable to the accused songwriters, as it
eliminated additional "whoops" and clanging cow bells
which are also heard in both songs.
Marvin Gaye's family was awarded US$7.3 million, consisting
of US$4 million in damages and around US$3.3 million from the
profits of the plagiarised song.
Legal Implications for the Music Industry
Although not a new concept to the music industry, the phenomenon
of borrowing tunes from previous eras and turning bygone styles
into pop hits is on the rise.
This case is a timely reminder that when the copyright
infringement of a song is in question, the law concerning
plagiarism is not black or white, but can be blurred by many
different factors and elements. The similarity of notes, choruses,
phrases and lyrics are all key considerations and may be given
different weight when determining whether copyright infringement
has occurred, leaving factors such as the general "feel"
of a song, being less important.
The similarities of the two songs were disputed by both parties
on many different issues, which resulted in the parties being
unable to reach an out of court settlement; leaving the decision to
a jury. This is rare, but it highlights the difficulties both in
applying the law to a creative process and separating any emotional
attachment from the end product. Given the likely implications of
this case for the creative industry, the individuals involved in
the music industry need to be ever vigilant in the way they use
inspiration in their songs, especially given the possible damage to
an individual's reputation once an accusation of plagiarism
As a licensor or a licensee, here are some tips you should consider when negotiating your next licence agreement.
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