Editorial Note: For another take on this issue see Stephen Key’s insightful editorial What Robin Thicke’s ‘Blurred Lines’ Can Teach You About Stealing Ideas published by Entrepreneur.com.
Recently I was driving around between appointments and flipping through radio stations on Sirius XM. I came across a song that at first I thought was the summer hit by Robin Thicke and Pharrell Williams – Blurred Lines. But that wasn’t the song at all, rather is was Marvin Gaye’s Got to Give it Up. I knew it would only be time before reading about some kind of settlement between Marvin Gaye’s family and Thicke/Williams, but Robin Thicke and Pharrell Williams suing the family of Marvin Gaye, asserting that they are not infringing the copyright in Got to Give it Up would be hilarious if it weren’t so utterly ridiculous. See Federal Complaint filed in Williams v. Bridgeport Music Inc.
First, there is absolutely no doubt from a legal perspective that Thicke and Williams are infringing the work of Marvin Gaye. You can verify this for yourself by listening to the two songs. The similarity is overwhelming.
Proving Copyright Infringement
As a general rule, it is illegal for anyone to violate any of the rights provided by the copyright law to the copyright owner. When a copyright owner claims that someone has committed copyright infringement it is necessary for the copyright owner to prove two things. First, it is necessary for the copyright owner to prove that they are indeed the owner of a valid copyright. Second, the copyright owner must prove that the alleged infringer copied the original elements of the copyrighted work. Generally speaking the first prong is not difficult to meet. In most cases the question will be whether the alleged infringer took that which is original. This is a crucial question because a copyright protects only original works of authorship.
In this case the Gaye family will be able to prove copyright infringement without any problem. So why are Thicke and Williams taking the extraordinary and obviously ridiculous step of saying they were not infringing? They weren’t even sued by the Gaye family?
Clearly, the Gaye family were not all that pleased with Thicke and Williams ripping off Marvin Gaye. They have been making statements that Thicke and Williams copied Gaye, which of course they did insofar as copyright law is concerned. The only thing that makes sense here is that the Gaye family has been asking for a larger payment than Thicke and Williams want to pay, so they are trying to create some kind of leverage by bringing this matter to a head.
This matter will end in one of two ways. It will end with a settlement for an undisclosed sum paid to the Gaye family, or it will end with a complete and total victory by the Gaye family, which will also include Thicke and Williams paying the attorney’s fees for the Gaye family. Very few copyright cases go the distance (just like any other type of litigation really) and it would be astonishing for a case where infringement is so clear cut for there to be a trial. Still, look for the Gaye family to bring a counterclaim alleging copyright infringement before Thicke and Williams agree to do the sensible thing, which is pay for the infringement.
But did Thicke and Williams Copy?
At the heart of a copyright infringement case there has to be copying. No copying means no infringement. The trouble Thicke and Williams will have, however, is that they did not have to have consciously copied in order to be found to be infringers. Many years ago George Harrison lost a copyright infringement case where the “copying” evidence was simply that he could have heard the song he was alleged to infringe and did make it a practice to listen to music of others, particularly those on the charts. Not much evidence really, but with copyright law the larger the similarity the less evidence of copying that is needed.
Here there is overwhelming similarity and no one in their right mind would ever believe that Thicke and/or Williams has not at some point heard Marvin Gaye’s song. Thicke and Williams are very talented entertainers and could be characterized as masters of their craft, which means they are and have been students of the masters that came before them, even if indirectly being influenced.