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Robin Thicke Sues Marvin Gaye Because He’s Infringing?


Written by Gene Quinn
President & Founder of IPWatchdog, Inc.
Patent Attorney, Reg. No. 44,294
Zies, Widerman & Malek
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Posted: August 19, 2013 @ 1:35 pm
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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.

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Posted in: Copyright, Gene Quinn, IP News, IPWatchdog.com Articles

About the Author

is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.

 

 


29 comments
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  1. The notes, tempo, and key of both songs are different. Is this a copyright version of a DJ?

  2. NAH!!! Completely disagree with the author, I’m sure he is a fine lawyer but as far as music is concerned he doesn’t know what he is talking about, these two songs are very different, the tempo is different, the lyrics are different, about the only thing they have in common is that they are both played with musical instruments.

    P.S. I have no horse in this race in case anybody wonders, I am not affiliated in any way with either party, I just like good music and I appreciate good talent, Mr. Gaye was one the greats and Mr. Thicke has plenty of talent to hold his own. My best to both parties and I hope this legal nonsense stops, we need more artists, scientists, and engineers than lawyers to make this world a better place to live.

  3. I can’t take you serious after reading this.This is clearly not about infringement but more about the existence of ignorance. It’s clear to me that you are an attorney who knows that the (perceived) similarities (in the minds of the musically uninitiated) are enough to get an out of court settlement. So why not exploit that, after all that’s how most lawyers make a living. So is this infringement? No. Is there enough ignorance to get a ruling of infringement? A good chance yes. If so, we can get a settlement. Whether they infringed or not becomes irrelevant.

  4. While there are audible similarities between the two songs, this could be said about thousands of songs from different eras. It’s not like we have an “Under Pressure” / “Ice Ice Baby” level of infringement. “Got to Give it Up” may be the music industry’s version of prior art for Pharrell and Thicke, but as the previous commenter noted, there are verifiable differences between the songs. Pharrell is an amazing producer and performer and I wouldn’t be surprised to see him and Thicke come out on top here once everything is put on paper.

  5. Only a lawyer would find those songs confusingly similar.

  6. To all those who don’t believe Robin Thicke and Pharrell Williams have engaged in copyright infringement, you are entitled to your clearly erroneous view.

    With respect to copyright infringement analysis you do not focus on what is different, you focus on what is the same. There are many cases in the past were even a few notes have been enough to establish copyright infringement. Clearly, these songs are quite similar and anyone who is fair and actually listens to the songs will understand that to be true. The test is going to be whether a reasonable observer would think that the second song was taken from the first, and the answer to that is a resounding yes.

    When all is said and done Robin Thicke and Pharrell Williams will pay the family of Marvin Gaye because this is clearly copyright infringement. Whether you like it or not that is the reality.

    I look forward to you all coming back to acknowledge you were wrong when this matter finally resolves.

    -Gene

  7. You need to look at the sheet music or other hard copy to resolve the issue.

  8. I’d have to agree with the other commenters, generally speaking. Gene’s right about copyright infringement being based on what’s the same rather than what’s different, but I cannot hear anything identical here. I actually heard both of these songs for the first time when this story came out, and although the songs capture the same general mood, I personally cannot hear any identical riffs, chord progressions, melodies, lyrics, etc. That’s not to say they aren’t there, I just don’t hear them…I’m a huge music geek (although obviously not in this genre) but certainly no musician.

    But I think it’s telling that the Marvin Gaye people have (apparently) accused Thicke and Williams of copying the “sound” or “feel” of the song. If that is their strongest allegation of copyright infringement, I think they’ve got a losing case.

  9. Really?

    The song is more of an homage to Marvin, not at all like Ford ripping off Bett Midler or George Harrison’s “lifting of the melody.” So, any song that uses the same instrumentation or cow bells is an infringement?

  10. Robin Thicke was “stupid” enough to admit on TV that he was going for Marvin’s summer song. The high pitch scream, the bass grove, the beat ARE Marvin’s. They don’t need to be exact note for note. They admitted they USED Marvin’s song as a reference. PAY THE MASTER MARVIN!

  11. Anthony-

    Really? Are you going to pretend that using the same instruments creates infringement? Please. It is hard to believe you are at all familiar with the law on any level if that is your considered commentary.

    This is clearly copyright infringement. If you don’t want to acknowledge that fine. But let’s dispense with the histrionics, shall we? I expect more than the ridiculous even in comments on IPWatchdog.com.

    I also will look forward to you returning to acknowledge I am correct and you were wrong once this matter is resolved.

    -Gene

  12. In the ears of this ordinary observer I don’t perceive any copying.

  13. Well, except maybe Prince

  14. And Robert Palmer for the close-up-of-pouty-red-lipped-brunet-bouncing-her-head-staring-into-space-in-the-first-10-seconds-of-the-video image.

    See http://www.youtube.com/watch?v=XcATvu5f9vE

  15. Even my assistant with NO musical background thought this was Marvin’s song. Let’s make a list (high pitch scream, Cow bell, outdoor patio noise, thumping bass line, salsa time beat, falsetto voice)PLeassse. What a rip off! This is not a genre copyright like Thick claims. These are ALL the exact elements of Marvin’s song and I think thicke better PAY UP! He is such a no talent and admitted on TV they used Marvin’s exact song for reference. You can not STEAL someones work and then turn around and say its the same genre!

  16. White guy + black shirt + dark glasses + crew cut + two days growth = George Michael? http://www.drfunkenberry.com/2013/06/25/we-celebrate-george-michaels-birthday-with-a-megamix-listen-now/.

    Driving base + tinkling cowbell + descending note melody riff = Funkytown? http://www.youtube.com/watch?v=EPcuWuuVOTM

    Falsetto singer + percussion + monotone bass = Prince? http://www.myvideo.de/watch/6367094/Prince_Kiss (Look fast before it’s pulled. I had to go to Germany to find it. Dam copyright laws.)

    Somebody call the 80′s. Their copyright is being violated.

  17. Gene,

    Histrionics? Again, “really?” I feel you are going a bit overboard in your analysis of the song. The “feel” of the song is like Marvin’s, but the melody is very different. I am impressed that the cowbell comment has caught on with your readers. Gene you rock, but “rocking” would peg you as an oldie.

    Anthony

  18. Many of the comments here miss the important point. It is not what some particular performance sounds like. It is the similarity between the written forms that matters. Compare the sheet music side by side. Are they essentially the same? Are the notes in most measures the same time? Do the intervals (the jumps between notes) occur at the same places and have the same interval? That is, is there a C in each then the next note is G sharp then D in one form and in the other D, B flat, and E? All that is is key transposition. Then there is probably copyright violation.

    A song written in, for example, F major can sound very different in D flat minor but it is the same song.

    Not claiming to be as skilled a musician as I would like to be, but I can pick up what Gene is hearing. That is not conclusive proof but there is something there that merits further inquiry.

  19. Should have read “C in one”.

  20. Another (musical) amatuer has a question or two: what is the proper legal standard to be employed here? Is it as Tifoso suggests (and which sounds plausible, given that copyright is not given to things necessarily heard and that fixed in a tangible media is a requirement), or is sheet music NOT required (for example, if fixed in a tangible media includes merely a recording with no designated sheet music ever involved)?

  21. I’ve seen artist get sued for less than these guys did?..look at Men at Work for example….sued for copyright infringement 28 years after the fact over a flute part in their song “Down Under”…..ridiculous….probably 14 secs at best and really a non issue and barely resembles the song they were accused of taking it form…”Kookaburra?” they should pay!…..if Men at Work were ordered to pay 5% of their earnings over a 14 sec flute part….28 years later….these guys should have to pay something to the Gaye estate!

  22. Timmie – You confuse being sued with being found liable. What was the decision in the case? What is the cite?

  23. Didn’t you read what I wrote? they were ordered by the Australian court hearing the case to pay 5% of their earnings and that was 28 years after the song was popular….this amounts to a huge amount of money over a flute part in the folk song Kookaburra! The flute part is barely 2 bars long and honestly should have been a non issue…especially after 28 years if you didn’t realize it was there to begin with! Go read it for yourself!…..http://www.techdirt.com/articles/20100203/1928188030.shtml

  24. That is Australian law. Gene referred to a case in the US. How does that Australian case relate to the Thicke-Gaye controversy?

  25. I am an artist and producer and have been for over 25 yrs…all they had to do to safeguard themselves was to obtain a license to do a derivative work….I do them all the time and usually it’s a fairly painless process. The only time I’ve not been able to obtain a license was when there were multiple writers on one particular song I was producing and two of the writers were at odds with each other and because one writer of the 4 involved wouldn’t sign…I couldn’t get the license. There is a proper way to do this stuff and if people would stop trying to find loopholes and shortcuts….we wouldn’t be talkin about this apparent “kurfuffle now would we?

  26. Timmie – You are correct that that might have been an appropriate procedure. That would assume that the Thicke work actually infringed on the Gaye work. But that is not the case here. In fact, it is backwards. Thicke, who may have infringed, has sued the owners of the Gaye work. Thicke is claiming there is no infringement. If Thicke believes this and can show this, then there would be no reason to obtain any license.

    Another issue is how does one go about showing infringement in such a case. Can that be by simply listening to the two performances or must that involve the sheet music?

  27. Tifoso,

    I do not know the answer to the underlying question, but is your post at 26, seemingly backtracking from your assertions at 7 and 18, due in response to my question at 20?

  28. I am not an expert on copyright law by any means but I am a fan of both Marvin Gaye and Robin Thicke and I gotta be honest the first thing it brought to mind was Marvin Gaye but whether or not that is enough to win a case remains to be seen. I don’t think that it helps that Robin said they were going for a Marvin Gaye vibe.

  29. listen to the song Robin Thicke put out called Million Dollar Baby then listen to Marvin Gaye’s Trouble Man

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