Christopher McHattie & Sean E. Sanders
Last year’s copyright infringement action between Marvin Gaye’s estate and Robin Thicke and Pharrell Williams has songwriters, lyricists and composers looking over their shoulders. The decision raises important questions on how “short” a musical work can be to be entitled to copyright protection. Is a sequence of 10 notes enough? How about 4 notes?
Gaye’s estate successfully claimed that Robin Thicke and Pharrell Williams’ “Blurred Lines” infringed on Marvin Gaye’s 1977 hit “Got to Give It Up”. The Los Angeles jury found an infringement and awarded $7.4 million (later reduced to $5.3 million).
What struck many as alarming was the relatively small overlap between the two songs. Most would agree that the question for the jury came down to whether Thicke and Williams copied the “feel” of the song and a handful of lyrics, rather than the “literal” elements of the copyrighted work itself.
As noted by Judge Learned Hand in 1940: “It must be remembered that while there are an enormous number of possible permutations of the musical notes of the scale, only a few are pleasing; and much fewer still suit the infantile demands of the popular ear. Recurrence is not therefore an inevitable badge of plagiarism.” As expounded upon by Jennifer Jenkins, a professor of Music Copyright at Duke Law School, “[t]here are countless similar-sounding songs. This is not only because musicians build on the past, but also because….they are creating with a limited musical vocabulary. ”
Here, to find an infringement, the jury was instructed to determine whether: 1) Thicke and Williams had access to Gaye’s work, and 2) if there was a “substantial similarity” between the works. In Jorgensen v. Epic/Sony Records, the Second Circuit explained, “[t]here is an inverse ratio between access and probative similarity such that ‘the stronger the proof of similarity, the less the proof of access is required.” Copying may be proven when the works are so “strikingly similar” that it would be impossible to create independently without access. This is important because copyright protects original works of authorship and it is possible for two different artists to create identical works. However, when you can show that one artist had access to the work of another, and the works are substantially similar, a jury could conclude that copying had occurred.
Here, while the issue of access is less important because Thicke and Williams admitted having access to Gaye’s work, access is nevertheless a critical issue in this case and a critical concept to understand if you want to understand copyright infringement. With access admitted, the “substantial similarity” bar was lowered. The jury instruction accordingly allowed the jury to find infringement even if they only believed Thicke and Williams “subconsciously” borrowed from Gaye.
So, the question is: when do musical similarities amount to copyright infringement? According to the law, only when one musician has copied a quantitatively or qualitatively substantial amount of copyright-protected material from another. Professor Jenkins argues, and we agree, that’s what is lacking in the “Blurred Lines” case – copyright-protected material. Interestingly, based on the law, her students unanimously ruled in favor of Pharrell and Thicke in a classroom exercise.
Copyright only covers “original, creative expression.” Anything Marvin Gaye copied directly from his Motown, funk, or disco predecessors is not “original” and should be off the table. For example, “Got to Give It Up” was inspired by Johnnie Taylor’s song “Disco Lady.” As such, Gaye cannot claim copyright over material that he himself borrowed.
Similarly, the “scenes à faire” doctrine allows anybody to use “indispensable” elements of a genre or style without infringing on another’s copyright. For example, the 12 bar blues or the I-IV-V chord progression can be used under this doctrine by any artist.
Additionally, the Gaye case was not only about the copyright-protectable portions of Got to Give It Up as we know it, but rather the parts of it that were actually registered with the Copyright Office, here its composition as set forth on the sheet music filed with the copyright office. Gaye had a right to protect the “core” of his song under the 1909 Copyright Act, but not the ancillary elements (like, for example, the cowbell, because it was not on the sheet music). Had Gaye published his song just one year later in 1978, when the Copyright Act of 1976 went into effect, his case would have been more plausible, for the “phonorecord,” or master recording to have been protected in its entirety. But under the former Copyright Act, Gaye could claim much less than the overall piece. So, Gaye was restricted to a relatively small subset of original material, and then only a subset of that original material that was actually reflected in the Copyright Registration.
We can only guess what was in the jury’s heads when they found for Gaye. The Ninth Circuit (where the Gaye trial was held) test for infringement asks whether “the ordinary, reasonable listener would conclude the total concept and feel” of the works (remember this does not include all the material that Gaye himself borrowed (consciously or subconsciously) or the “scenes à faire” material), were “substantially similar”. To make matters worse, the judge only allowed jurors to listen to a skeletal version of Got to Give It Up. The song was stripped of its unprotected elements, leaving what was on the sheet music, arguably making a “total concept and feel” determination impossible.
This difficult case contrasts with other notable music infringement cases. For example, the 1992 case between Michael Bolton’s “Love is a Wonderful Thing” and The Isley Brothers’ song of the same name. The jury there awarded The Isley Brothers $5.2 million for Bolton’s obvious infringement:
Now listen to “Blurred Lines” against “Got to Give It Up”:
This case has left those in the music industry worried about what portion of their work might unwittingly infringe that of another, and equally, and perhaps more sinisterly, who might be infringing their work, i.e. who can I sue? Most recently, Ed Sheeran was named, amongst others, as a defendant in a copyright infringement matter, again relating to content which is of questionable copyright status.
While Courts have ruled that one single musical note would be too small of a “unit” to garner protection, the arrangement of a combination of notes, particularly if repeated as a refrain, can be protected by copyright. Remarkably, in one case, the federal court in New York found that four notes were enough for copyright. Elsmere Music, Inc. v. Nat’l Broad. Co. The unit of music must also be “qualitatively important”, Baxter v. MCA, Inc., to the overall work.
In another case, the same court found that the word “uh-oh”, following a distinctive rhythm, was alone enough to qualify for copyright protection. Santrayll v. Burrell.
This means that artists and songwriters have to be careful when creating their music, especially given the limited number of note and chord combinations that exist. In fact, many pop hits share the same four chord melodies. The similarity is so striking, an Australian band made a career out of illustrating it. Even more interesting, the judge excluded this video from being shown to the jury for its “substantial risk of [unfair] prejudice.” Caution: vulgar language.