I wrote about the Robin Thicke copyright suit a few weeks ago and to pass the time waiting for the outcome, we distracted ourselves with the great dress debate of 2015. We can rest easy, for we now have answers to questions that threatened to break the Internet. The color of the dress depends on your perception and, as far as a jury of his peers is concerned, Mr. Thicke is a total copycat.
Recapping the important issue, Thicke sought a declaration that his song “Blurred Lines” did not copy Marvin Gaye’s song “Got to Give it Up.” Gaye’s children, the owners of the copyright, sued for infringement. This was not your typical garden variety infringement suit. Aside from the fact that there was actually a trial when most of these types of cases settle, the matter turned on what version of “Got to Give it Up” would be heard, which was not the actual sound recording. You can read the details here.
The eight day trial featured tons of experts, some rather odd testimony from Mr. Thicke, a look at the financial success of “Blurred Lines,” and most importantly, a comparison of the two songs. The jury determined there was substantial similarity and awarded damages to the tune of nearly $7.4 million, which is a doozy considering that they did not find willful infringement.
The Gayes had the burden of proof to show by a preponderance of the evidence that there was both substantial extrinsic and intrinsic similarity between “Blurred Lines” and “Got to Give it Up.” Judge Kronstadt’s instructions provided that, in order to make this determination, the jury was to consider the signature phrase, hook, counter-melody (“Theme X”), bass melodies, keyboard parts, word painting, lyrics, and rap versus parlando (performed in a style suggestive of speech). The Gayes did not have to show each of these things was similar, but rather that there was enough similarity between the works to comprise a substantial amount. The instructions also provided that, in considering whether extrinsic or intrinsic similarities were substantial, the jury could consider whether the portions allegedly copied were qualitatively or quantitatively important to Gaye’s work.
In an infringement case, once the unprotectable parts of a work are removed, a court then has to determine if the protectable portions have been copied. So once the parties submitted their versions of what they believed to be the protected expression of “Got to Give it Up,” the jury was tasked with figuring out if the allegedly copied parts of “Blurred Lines” constituted a substantial portion. It doesn’t matter how much was taken; the analysis requires that even if the similar material is quantitatively small, if it is qualitatively important, substantial similarity can be found.
It’s important to note that we don’t know exactly what the jury heard and we don’t know exactly what portions of “Blurred Lines” were deemed substantially similar to “Got to Give it Up.” All we know is that, based on the testimony and evidence presented, the jury found that the Gayes had met their burden in showing substantial similarity between the works. I admit that it is a close call, but I just don’t see enough similarity between the melody, the chords, or the hook. It sounds to me like the jury was stretching the qualitatively important analysis to apply to elements that are indicative of a genre, and not necessarily a particular Marvin Gaye song. Many will disagree with me on this point, but I don’t think that is unfounded.
Juries often decide with their hearts, and there aren’t many who have been singing Thicke’s praises of late. He’s been called all sorts of unsavory things and “Blurred Lines” certainly had its share of controversy before this mess. In fact, in May 2013, Thicke told GQ Magazine that “Got to Give It Up” was one of his favorite songs and as a source of inspiration for “Blurred Lines.” Yikes! The Gaye family cited this as evidence that Thicke had stolen the song, as they should have. Would this case have turned out differently if Thicke hadn’t made those comments? Maybe. Would it have turned out differently if he was a more endearing defendant? Maybe. Alas, while we will never know if that’s what happened, it does merit at least some thought.
Thicke maintains that the Gaye family doesn’t own a genre, a style, or a groove and he’s right. The Gayes point out no other musicians or songs of the era were compared with “Blurred Lines,” and they’re right, too. A viable criticism of the verdict is that it could have a chilling effect on new music for fear of overzealous copyright owners attempting to expand this concept to their cases. Is it possible that a ruling of this nature would stifle creativity? Perhaps, but people were saying the same thing when the music sampling cases happened, and the industry adapted just fine. The Gayes had the burden of proof here, they jury found they met it, and that’s all she wrote (for now).
Thicke will certainly appeal but this case will have to wind its way through the courts before we can consider this binding precedent. It’s just one verdict in one civil case and a lot has to happen before we can label this as copyright law’s swan song so let’s not start working on our amicus briefs just yet. For the record, I see the dress with both color schemes.