Copyright & The ‘Blurred Lines’ Between Inspiration & Infringement

The dispute over whether mega-hit Blurred Lines (written by Pharrell Williams and Robin Thicke) infringed the copyright in Marvin Gaye’s 1977 hit Got to Give It Up, has brought into the headlines the issue of when does lawful inspiration cross the line into unlawful copying.

Blurred Lines copyright case

Summary

Pharrell Williams and Robin Thicke wrote and recorded Blurred Lines. It was released as a single in 2013, becoming the biggest-selling song of the year. It reached number one in 20 countries around the world selling 14.8m copies and generating an income of $16m.

It is an old cliche that where there is a hit, there is a writ. The estate of Marvin Gaye detected similarities to his 1977 hit Got to Give It Up and claimed infringement of copyright; believing that the sound and feel of the track owed much to his earlier hit.

Proceedings were then bought by Thicke and Williams against the estate of Marvin Gaye seeking a declaratory judgement that Blurred Lines did not in fact infringe the copyright in Got to Give It Up.  They argued that the suggestion of copyright infringement was without merit.

Williams and Thicke admitted that they had been inspired by the Marvin Gaye track and that they had been channelling the feel of the earlier song. But they pointed to different chord progressions and different melodies in different keys as evidencing a different song. Whilst they admitted that their hit was playing homage to the earlier, they argued it was an original work and not a copy.

That tactic backfired, however, as in March a jury in the USA found Williams and Thicke liable for copyright infringement. The estate of Marvin Gaye was awarded $7.4m and he is now credited as co-writer.

The decision has prompted much debate, with Williams and Thicke having said that they will appeal.

Williams has released a statement saying that the decision “… hampers any creator out there who is making something that might be inspired by someone else… this applies to fashion, music, design… anything. If we lose our freedom to be inspired, we’re going to look up one day and the entertainment industry as we know it will be frozen in litigation”.

Many commentators have pointed to the rich history of popular music down the centuries of songs being inspired by earlier songs.

The Gaye family however released their own statement, pointing out that the tracks were not played in court and that the jury made their decision entirely based on musical composition and not style, feel, era or genre. “Most songwriters” they explain, “begin with an organic approach; a songwriter brings his or her influences to the table and then works creatively from a blank slate in the crafting of their song to ensure originality”.

This was a decision in the USA. In the UK a judge would decide such a case, not a jury. The issues though would be similar. Under the Copyright, Design and Patents Act 1988 copyright subsists in a literary, dramatic, musical or artistic work. Copyright is infringed if a substantial part of the original work is copied. Such an approach was followed in the 1978 case over whether George Harrison’s My Sweet Lord had infringed copyright in the earlier hit He’s So Fine. The court was presented with charts comparing the note and chords used in the songs to show the similarities.

Harrison in later interviews said that had he realised the similarity, he would have changed some notes to ensure that they sounded and felt like different songs. It is always wise where a work is inspired by an earlier work to step back at the end and ensure the look and feel of the new work is very different from the original work.

The alternative solution is the one suggested by the Gaye family here. They pointed out that Williams and Thicke had admitted setting out to write a song with a similar groove to the earlier hit so could have sought permission to licence the earlier work from the outset. The original copyright owner is then credited and paid for their work.

Comment

This case is not going to define where inspiration ends and infringement begins – each case is different. But it highlights the difficulties as no creator creates in a vacuum. Everyone is inspired by something; which comes back to where we started. It can be a difficult line to hold to take inspiration from an earlier work without crossing into infringement of it.