(Jake Linford) “Blurred Lines,” the summer hit of 2013, is the subject of a copyright dispute. The estate of Marvin Gaye claims that the composers of the hit song (Pharrel Williams, Robin Thicke, and T.I.) appropriated the song from the Gaye hit, “Got to Give it Up.” Williams et all filed a declaratory judgment action, and moved to dismiss the Gaye family’s counterclaims alleging copyright infringement. Last month, Judge John A. Kronstadt denied a motion to dismiss. The order interests me for two reasons. Here I focus on the first.
I used the “Blurred Lines” case last year as the basis for a memo assignment on substantial similarity in my copyright class. For those of you who don’t think often about copyright law, proving infringement requires evidence of copying, which is usually inferred from 1) access to the original work and 2) substantial similarity between the original and the alleged copy. In this case, Alan Thicke said in multiple interviews that he and Pharell meant to write an homage to the Gaye song, so I let the students assume access. I tasked the students with summarizing the state of the law in the Ninth Circuit on protectable elements of musical composition, i.e., which elements in a song can be copied without triggering liability, and which elements cannot. I then asked them to opine on a likely outcome in the case. At the time, the report from a musicologist hired by the Gaye family had leaked via Hollywood reporter. There was no competing report from the Williams camp available at the time, so I invited a musicologist from across campus, Brian Gaber, to walk the students through differences in the two works of music as if he were advising Williams and his co-writers about the similiarity of the musical elements.
The students were nervous about digging into the similarities and differences in the musical composition (what the song would look like if you wrote it up in standard notation) and the sound recording (what the song sounds like). Some students expressed concern that classmates who knew something about music would perform better on the assignment than those who knew little or nothing. But I invited them to think of the assignment as an opportunity to learn about substantial similiarity in a musical context, and to develop the ability to teach themselves about a complex issue in the course of preparing for a case. This is a challenge that will face lawyers providing legal advice in any substantial similarity case. Handling substantial similiarity requires familiarizing oneself with the norms of an industry, and how common elements or scènes à faire (unprotectable stock elements) manifest in a given genre.