Blurring the lines between inspiration, imitation and infringement of copyright

Written by Éamon Chawke | March 29, 2018


Earlier this month, a US appeals court upheld an earlier finding by a trial court in the US that Robin Thicke’s song “Blurred Lines” infringed on the copyright in Marvin Gaye’s “Got to Give It Up.”

Gaye died in 1984, but his family argued that “Got to Give it Up” was copied by Thicke making “Blurred Lines” one of the most commercially successful songs of 2013.

Thicke (and Pharrell Williams, who helped to write and record “Blurred Lines”) disputed that “Got to Give it Up” had been copied and many in the music industry also believed that the US courts had gone too far in their attempts to protect the style and ‘feel’ of “Got to Give it Up.”

In a dissenting judgement, Judge Jacqueline H. Nguyen criticized the decision of the majority as one that “allows the Gayes to accomplish what no one has before: copyright a musical style.” She also warned that the decision “establishes a dangerous precedent that strikes a devastating blow to future musicians and composers everywhere.”

As a result of the decision, damages will be paid to the Gaye estate $5.3 million. The Gayes will also receive a running royalty of 50% of future songwriter and publishing revenues from “Blurred Lines”.

Briffa comment:

The “Blurred Lines” copyright dispute hinges on the meaning and interpretation of what constitutes a ‘substantial part’ of a copyright work, because, in order to prove infringement of a copyright work, the claimant must establish that the defendant has copied the whole or a ‘substantial part’ of their copyright work.

Where the whole of the earlier copyright work is copied (e.g. a photocopy or other ‘slavish’ copy of the work) infringement is usually not difficult to prove. However, in the majority of cases, the whole of the earlier copyright work will not have been taken, and the claimant must establish instead that what has been taken by the defendant constitutes a ‘substantial part’ of their copyright work.

Assessing what constitutes a ‘substantial part’ is not always easy to define or describe. We know that the ‘substantial part’ assessment is not exclusively quantitative (in other words, it is not sufficient for the claimant to prove that the defendant copied X% of their copyright work). Rather, the ‘substantial part’ assessment requires the claimant to establish, quantitatively and qualitatively, that the defendant copied the ‘important parts’ of the earlier copyright work (or, to put it another way, the parts that represent the claimant’s ‘own intellectual creation’ or the expression of the claimants ‘skill, labour and judgment’).

In this case, the trial court in the US took the view (and the US appeals court agreed) that certain elements “Got to Give it Up” that were reproduced in “Blurred Lines” constituted a substantial part of the earlier copyright work, and, therefore, were sufficient to give rise to copyright infringement.

It remains to be seen whether this case is the high water mark or whether courts in the US and elsewhere will continue to stretch the parameters of what constitutes a ‘substantial part’ of musical and other creative works protected by copyright. Either way, it is likely that songwriters and producers will approach song writing and the production of music with more caution where there is a risk that new musical works might infringe the copyright in existing musical works.

Briffa advises on all aspects of copyright law and practice, including contentious (e.g. infringement) and non-contentious (e.g. licensing) matters. If you have any queries regarding copyright or any other intellectual property rights, please do not hesitate to get in contact with us and we will be happy to assist. We offer free 30-minute consultations to all new clients at our offices in the Business Design Centre in Islington, London.

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