Popular music has a history of copyright infringement. Most hit songs face some allegations of copyright infringement, some disputes go to court but the vast majority are settled. From George Harrison, to Vanilla Ice, to Sam Smith, many popular musicians can’t seem to help borrowing from music of the past. Sometimes it is done by accident, and sometimes the artist is blatantly “sampling” someone else’s work.
Enter Robin Thicke and Pharrell Williams.
On March 10, a jury in Los Angeles reached the verdict that the disturbingly catchy Robin Thicke song, “Blurred Lines”, had infringed on the copyright of Marvin Gaye’s “Got To Give It Up”. Interestingly, Pharrell and Thicke started the court case by asking for a declaration that the song did not infringe the copyright of “Got To Give It Up”.
I was surprised by the decision. Having listened to both songs, I could hear stylistic similarities, but they didn’t sound any more similar than any two songs from the same genre. To understand the decision it’s important to know how infringement is determined.
The law attempts to look at the two works from the standpoint of a reasonable listener. For there to be infringement, there must be some objective similarity between the copying work and the original work. However, copyright law recognizes that there are times when artists can create remarkably similar works without having influenced each other. So in order to prove infringement, the creator of the original work also needs to show a causal connection between the works. In other words, the second artist has to have used the original song to create the infringing song.
The causal connection was not really an issue in this case. Commonly, artists are guilty of “unconscious copying”, where an artist copies a song they have heard before without any intent to copy it. The popularity of the original song can be used to prove that it was in the mind of the second artist and therefore caused the creation of the infringing song.
The issue was whether or not “Blurred Lines” is sufficiently similar to “Got To Give It Up”. Pharrell and Thicke argued that they have a similar feel but they were really only similar in that they are the same genre. Ultimately the jury disagreed. Based on the evidence, the jury found that there was infringement but it wasn’t willful.
I am no music expert, but to me the similarities seem minimal. I can think of many songs that sound much more alike than these two. For an artist, this decision may make it difficult to tell if a song is infringing.
The line at which a similar song becomes guilty of copyright infringement is left blurred.