Copyright’s “Blurred Lines” - Fordham Intellectual Property, Media & Entertainment Law Journal
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Copyright’s “Blurred Lines”

Copyright’s “Blurred Lines”

Robin Thicke’s “Blurred Lines” was the certifiable hit of the summer, grabbing listeners with its come-hither vocals, controversial lyrics and infectious groove, complete with a high dosage of cowbell. But the copyright owners of earlier songs featuring that cowbell and several other musical elements present in “Blurred Lines” feel they deserve a cut of the song’s success. On August 15, 2013, Thicke, producer Pharrell Williams, and featured rapper Clifford “T.I.” Harris filed a complaint for declaratory relief against Bridgeport Music, Inc., a holding company with copyrights in the Funkadelic song “Sexy Ways,” and the heirs of singer Marvin Gaye, whose “Got To Give It Up”  inspired “Blurred Lines.”

So why are the “Blurred Lines” artists pre-emptively filing a complaint against the copyright owners? The Gayes’ refusal of a six-figure settlement portends legal action. Resolutions to copyright disputes over musical compositions can range from monetary settlements to sharing song-writing credits to the owners of the earlier copyrighted work receiving 100% of royalties for a hit song. With the proliferation of media exploiting music copyrights, a song’s life can span decades over a plethora of formats, many not even imagined at the time of the song’s release. In planning future use of “Blurred Lines,” Thicke, et al. benefit from knowing what, if any, royalties will go to Bridgeport or the Gayes.

Jurisdiction presents another likely motivation for filing. Tamla/Motown Records, a Detroit-based company, released Gaye’s “Got to Give it Up” single in 1977 and Bridgeport Music, who Funkadelic founding member George Clinton contends “stole” the rights to his songs, is headquartered in Southfield, Michigan. Bridgeport, who has brought hundreds of copyright infringement suits against R&B and hip-hop artists, is one of the named parties in the Sixth Circuit case that established the “[g]et a license or do not sample” standard. While sampling per se does not appear to be the issue with “Blurred Lines,” Thicke’s chances of avoiding infringement claims improve in the Ninth Circuit, where the court in Newton v. Diamond LLC BMG found the use of twice as many copied notes as were sampled in Bridgeport to lack the necessary “substantial similarity” element.

In the Ninth Circuit, the copyright owner must prove both ownership of a valid copyright and that the new artist copied original elements from the copyrighted work. Here, Thicke et al. stipulate Bridgeport and the Gaye’s ownership, but state “there are no similarities between [Thicke’s] composition and those the claimants allege they own, other than commonplace musical elements . . . Being reminiscent of a ‘sound’ is not copyright infringement.”

Access and “substantial similarity” to the copyrighted work, the elements of “copying” used to assess an allegation of infringement, are “inextricably linked” by an inverse ratio rule, which “requires a lesser showing of substantial similarity if there is a strong showing of access.” In an interview with GQ, Thicke’s description of the conception of “Blurred Lines” amounts to a very strong showing of access: “Pharrell and I were in the studio and I told him that one of my favorite songs of all time was Marvin Gaye’s ‘Got to Give It Up.’ I was like, ‘Damn, we should make something like that, something with that groove.’” To prove infringement, the Gayes’ claim would require a lesser showing of substantial similarity.

In the production of “Blurred Lines,” Thicke and Williams aimed to recapture the feeling of Gaye’s song following the approach used to produce “Planet Rock.” To record Afrika Bambaataa’s 1982 single “Planet Rock,” Bambaataa and producer Arthur Baker recreated elements of two Kraftwerk songs — the melody from “Trans Europe Express” and the drum pattern (and Japanese counting “Ichi, ni, san, shi”) from “Numbers” —  using a synthesizer and TR-808 drum machine (and voice), respectively. Baker acknowledges settling a copyright dispute with Kraftwerk over the melody in “Planet Rock” for “a lot of money.” While the cowbell and bass groove of “Blurred Lines” may be “substantially similar” to Gaye’s song, the Fender Rhodes piano part is likely not. As Williams points out, “anybody that plays music and reads music, just simply go to the piano and play the two. One’s minor and one’s major. And not even in the same key.”

In their 1988 book The Manual (How to Have a Number One the Easy Way), influential electronic dance music producers Bill Drummond and Jimmy Cauty posit an alternate reality where “at least eighty per cent [of the copyright] would have gone to the creators of the groove,” a reality incrementally approached by a recent decision in Germany. On December 13, 2012, Kraftwerk won a twelve-year copyright infringement suit against Pelham & Haas over their use of a two-second sample from the percussion track of 1977’s “Metall auf Metall” in the 1997 single “Nur Mir,” featuring rapper Sabrina Setlur. After a bizarre series of demonstrations in the courtroom involving a 1996 Akai Sampler and the striking of metal on metal, the Federal Court of Justice of Germany delineated a standard whereby sampling is only permissible if the new artist could not produce the same effect at the time of recording. An interesting development for the creators of groove and one unlikely to affect American artists, though even if it did, as “Blurred Lines” recreated but did not sample the rhythm of “Got to Give It Up,” Thicke and Williams would likely be in the clear.

Daniel Sheerin

Daniel Sheerin, a second year student at Fordham Law, is a staff member of the Intellectual Property, Media & Entertainment Law Journal. After graduating Tufts University, he moved to New York City to play drums, which he can still do, if called upon.