BlurredLines
Arecent U.S. decision relating to the song BlurredLines has attracted significant publicity but raises some concerns.
The Facts
Blurred Lines is a musical composition written andperformed by Robin Thicke, Clifford Harris, Jr. and Pharrell Williams (the“Thicke Parties”) that was released in 2013. The song was an immense commercial success and on a world-wide basisbecame number 1 in at least twenty-five countries.
Theauthors publically said that the song had been inspired by the Marvin Gaye songGot to Give it Up. The song became the subject matter of a legaldispute between the family of Marvin Gaye and the Thicke Parties and others concerningwhether the song infringed the copyright subsisting in Got to Give it Up.
The Proceedings
InAugust of 2013, Thicke Parties filed a complaint in the United States DistrictCourt for the Central District of California seeking a declaration that Blurred Lines did not infringe thecopyright subsisting in Got to Give it Up. The Gaye family (the “Gaye Parties”) respondedby asserting a counterclaim alleging infringement of copyright.
InFebruary of 2015 the trial proceeded for seven days before a jury. At the trial the Gaye family relied on theevidence of a musicologist who was designated as an expert as well as otherevidence.
Theopinion of the musicologist related to a number of commonalities in the twoworks, including the following:
Theme X, which was a four note sequenceof notes that made up the melody of Gotto Give it Up and which was said to be mirrored in a four note sequence in Blurred Lines;
The base melodies which were said toshare common elements;
Keyboard part for Got to Give it Up, which was based on an extrapolation from themusical notation which indicated rhythms of harmonic parts, was said to besimilar;
The lyrics, and the use of “wordpainting” or the pairing of musical elements with the lyrics. Both songs were said to make similar use ofthe words “up”, “down”, “shake” and “round”. In particular, in each song the scale degree moves up after the word“up” is used and down after the word “down” is used.
The hook or the passage that was writtento catch and maintain the interest of listeners was said to be similar in bothsongs.
Juryinstruction#43 which was read to the jury was as follows:
In order for the Gaye Parties to meettheir burden of proof to show by a preponderance of the evidence that there issubstantial similarity between…the Gaye Parties’ work and one of the ThickeParties’ works, the Gaye Parties must show that there is both substantial“extrinsic similarity” and substantial “intrinsic similarity” as to the pair ofworks.
Extrinsic similarity is shown when twoworks have a similarity of ideas and expression as measured by external,objective criteria. To make this determination, you must consider the elementsof each of the works and decide if they are substantially similar. This is notthe same as “identical.” There has been testimony and evidence presented byboth sides on this issue, including by expert witnesses, as to such matters as theso-called “Signature Phrase,” hook, “Theme X,” bass melodies, keyboard parts,word painting, lyrics, rap v. parlando. The Gaye Parties do not have to showthat each of these individual elements is substantially similar, but ratherthat there is enough similarity between the work of the Gaye Parties and the allegedlyinfringing work of the Thicke Parties to comprise a substantial amount.
Intrinsic similarity is shown if anordinary, reasonable listener would conclude that the total concept and feel ofthe Gaye Parties’ work and the Thicke Parties’ work are substantially similar.
In considering whether extrinsic orintrinsic similarities are substantial, you may consider whether portionsallegedly copied are either qualitatively or quantitatively important to theGaye Parties’ work. A portion of a work is qualitatively important if,regardless of its size, it is shown to be very important to that work. Thecopying of a qualitatively important portion of a work may support a finding ofsubstantial similarity even if that portion is very short. A portion of a workis quantitatively important if it comprises a significant portion of the work.
OnMarch 10, 2015 after deliberating for two days the jury returned averdict. It was found on a preponderanceof evidence that the plaintiffs had infringed the copyright in the musicalcomposition Got to Give it Up.
Damageswere awarded in excess of $3.1M as well as profits in excess of $350,000. The court refused to grant an injunction butallowed a request for an ongoing royalty of 50% of the songwriter andpublishing revenues of Blurred Lines. The royalty began to run on the date that thejudgement was entered.
Thecase and the result that had been arrived at has been criticized in the U.S. onthe basis that juries are not musicologists and that despite carefulinstructions from the presiding judge they are influenced by broader fairnessissues. In addition, it has been suggestedthat the jury was overly influenced by the contrived and stripped down versionsof the two songs presented by the experts.
Ithas been argued that while this approach might be acceptable between theparties to the lawsuit it is inappropriate on a broader scale since overlybroad copyright protection has a negative impact on creativity.
The Canadian Position
Whilethere are some differences the basic rules are similar in Canada. The CopyrightAct provides that a “musical work” means “any work or music or musicalcomposition, with or without words and includes any compilation thereof”. As a result, for musical works createdsubsequent to August 31, 1993 there is no requirement that a work be reduced towriting. This means that somewhatbroader protection is available in Canada but in most cases the work will be evidencedby musical notation.
Toconstitute an infringement of copyright, two elements must be present. First, there must be sufficient objective similaritybetween the infringing work and the copyright work or a substantial part of it forthe former to be properly described as a reproduction or adaption of thelatter. Second, the copyright work mustbe the source from which the infringing work has derived. There must be a casual connection between thecopyright work and the infringing work.
Thevast majority of cases involving copyright and musical works which proceed totrial are heard by a judge alone rather than a jury.
Comment
Thecase is unusual. The Thicke Parties musthave felt strongly that Blurred Lineswas not infringing since they brought an action for a declaration it was notinfringing. Presumably they acted on thebasis of objective legal advice in adopting this position. However, when the case proceeded before ajury the result was different.
John McKeown
Goldman SloanNash & Haber LLP
480University Avenue, Suite 1600
Toronto,Ontario M5G 1V2
Direct Line:(416) 597-3371
Fax: (416)597-3370
Email: mckeown@gsnh.com
These comments are of a general nature and not intended to provide legaladvice as individual situations will differ and should be discussed with alawyer.
0+
