On March 21, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit upheld significant parts of a trial court opinion that awarded $5.3 million to Marvin Gaye’s children. Robin Thicke and Pharrell Williams were found to have infringed on Gaye’s 1977 song “Got to Give It Up” in their 2013 song “Blurred Lines.” 

Half of future revenue from “Blurred Lines” was also awarded.

The copyright 

Copyright protects creative works and related financial gain. A copyright lasts throughout its owner’s life plus 70 years. Gaye died in 1984 and his children now own the “Got to Give It Up” copyright. 

The dispute 

The history of this dispute and the complexity of the 9th Circuit opinion are beyond the scope of this post, but the majority wrote: 

• In 1977, Jobete Music Company, Inc., registered Gaye’s copyright by depositing sheet music at the U.S. Copyright Office that had been transcribed from Gaye’s recording, since he did not read music.
• The lower court ruled that the former Copyright Act of 1909 applied so only the sheet music was protected, not commercial recordings. The Gayes were allowed to play recordings of narrow parts of the song to illustrate the protected elements in dispute from the sheet music. Both sides provided expert testimony on these elements.
• Thicke and Williams both testified to having taken “inspiration from Marvin Gaye” and broad access to his song.
• Copyright infringement can be shown by circumstantial evidence if the alleged infringer had “access” to the earlier work and they are “substantially similar.”
• The plaintiff must show both extrinsic, objective similarity in the elements of the song and intrinsic, subjective similarity.
• Accordingly, the lower court’s ruling was “not against the clear weight of the evidence.” 

One judge wrote a strong dissent that the opinion extends copyright protection to a “musical style.” 

Forbes published a detailed article that includes the reactions of the parties and their attorneys as well as of various other stakeholders in the musical field. The author says that “some artists will say this is the end of copyright law as we know it …” She feels that in the future, artists may decide to “[err] on the side of caution and extreme due diligence” and decide to ask for licenses from copyright holders, depending on the degree of inspiration from earlier works. 

The impact of this decision remains to be seen, but it underscores the importance of getting legal advice from an experienced copyright attorney whether you are on either side of a potential copyright dispute.