The “Blurred Lines” of Copyright Infringement

A legal controversy is brewing between the Gaye Estate and the writers of “Blurred Lines”. Robin Thicke, Pharrell Williams and Clifford “T.I.” Harris as writers of the smash hit filed a pre-emptive lawsuit in August to protect “Blurred Lines” from the Gaye estate. The hit has sold more than 16 million copies, staying on the pop charts for 16 weeks this summer. The pre-emptive lawsuit acts as a request for a declaration stating that the composition was not copyright infringement of Marvin Gaye’s “Got to Give it Up”. In response, the Gaye estate has filed counterclaims of copyright infringement against the co-writers of the song and breach of fiduciary duty against Sony-ATV. In response to the counterclaim, the writers plan to challenge the standing of the Gaye’s heirs to challenge copyright infringement of the song.

The pre-emptive complaint of the writers states that “there are no similarities” other than “commonplace musical elements” between the works. The complaint states that although “Blurred Lines” is “reminiscent” of “Got to Give it Up”, it is not sufficient to give rise to copyright infringement. The counter claims against the Blurred Lines co-writers are for copyright infringement of Gaye’s “Got to Give it Up” and “After the Dance”, which the estate claims is copied in Thicke’s 2011 “Love After War”.

Copyright infringement is established by fulfilling two requirements. First, the Gaye estate will have to show that writers had access to the composition “Got to Give it Up” and “After the Dance”. Second, the estate must show resemblance between the two works. The requirements act as an inverse relationship with one another. For instance, if access is undisputed in this case, then moderate resemblance of the works would be enough to establish copyright infringement. However, if access cannot be proven, then high resemblance will be required to establish copyright infringement. The heirs complaint cites a musicologist, which states that there are “at least eight substantially similar compositional features between the two works”. In addition, the complaint contains reviews from music editors of magazines who recognized the similarities between the songs. “When I first heard Robin Thicke’s ‘Blurred Lines,’ my reaction was the same as millions of other R&B fans: Hey, that’s Marvin Gaye’s ‘Got to Give It Up.’” says Rolling Stone Magazine contributor David Ritz.

In addition, the Gaye estate is suing Sony-ATV for lack of fiduciary duty owed to protect the copyrights of the songs. After Gaye’s death, the family of the late singer contracted with Sony-ATV to administer his music catalog. Previously, the family asked Sony to sue the writers of “Blurred Lines” for copyright infringement and the music publisher refused.

Written by Jasmin Brooks, current 2L and editor of the IP Law Journal

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