Feb 16, 2015

Copyright and Robin Thicke – Have the lines been blurred?

A trial will begin this month to determine whether the hit song 'Blurred Lines' by Robin Thicke, Pharrell Williams and Clifford Harris Junior infringes that of Marvin Gaye's 1977 hit 'Got to give it up'.

Legal action was originally instigated by Robin Thicke and others back in September 2013 when they filed a pre-emptive claim against the family of Marvin Gaye. The family had made threats to sue the artists for infringing their rights to the copyright in 'Got to give it up' so Thicke filed a claim for a declaration that their track did not infringe the works in the original 1970's classic.

In response, in October 2013 the family filed a counter-claim claiming that Thicke had taken advantage of their father's credibility in order to drive sales for their own record which sold over 6 million copies and topped the US Billboard Hot 100 Chart for 12 weeks.

They claim that there is more than a stylistic resemblance to their father's record. To support their claim, they instructed an expert musicologist to study the music sheets and sound recordings of the two songs to look for similarities in the works. The expert alleges that there are at least eight substantially similar features including phrases, base lines, hooks, harmony structures, keyboard chords and vocal melodies. Meanwhile, the expert musicologist for Thicke has claimed that the melodies, harmonies and rhythms are different and are confident that they have a strong case.

The family also believe that "After the Dance" was taken advantage of to create Thicke's song "Love after War".

The argue that the similarity combined with Thicke and others' access to the record, means that it is unlikely that the track was not copied. Perhaps damagingly, Thicke openly admitted to having heard the record and being inspired by it and said that he wanted to create "something like it" whilst being interviewed for a US TV show. The dispute ultimately comes down to the blurred line between taking inspiration from other artist's works and creating new work that infringes the original works.

On that basis, US District Judge John Kronstadt denied Thicke's claim for the declaration and stated that it was for a jury to decide upon the "intrinsic similarity of the works". The DJ has limited the analysis of the works to that of how the compositions appear on sheet music, not how the tracks sound to listeners. He has also allowed the comparison between Marvin Gaye's hit "After the Dance" and Thicke's song "Love after War" to be considered as evidence. The decision will rest on the basis of what an objective reasonable person would determine to be similar.

Action against EMI

The family also joined publishing company EMI to the original proceedings claiming that the company had failed to protect the rights in their father's works. They also claimed that they had actively tried to prevent the family from seeking legal action against Thicke and others on the basis that it would hinder the success of the Blurred Lines record. EMI owns the rights to both artists' portfolios.

The family of Marvin Gaye further claimed that EMI had breached their contract and also breached their fiduciary duty to uphold the assigned rights to their father's portfolio and in doing so had failed to protect his legacy. This dispute settled last year. Although the terms of that settlement were not made public, EMI will not have to defend their impartiality in the forthcoming trial.

A video of the two comparative works in dispute can be seen at https://www.youtube.com/watch?v=ziz9HW2ZmmY

Posted by: in: Case Law, Contract, Copyright, News

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