BLURRED LINES IN MORE WAYS THAN ONE

The jury has spoken in the Robin Thicke “Blurred Lines” copyright infringement case, finding that the song infringes the copyright on Marvin Gaye’s 1977 “Got to Give it Up” and awarding the Gaye estate  over 7 million dollars in damages. The case has been framed by music industry talking heads and the press as one which deals with the line between “plagiarism” and “homage.” It is true that this case, like most intellectual property cases that go to trial, is about blurry lines and whether they have been crossed, but neither “plagiarism” nor “homage” is a concept that has any legal significance.

In terms of copyright law, the distinction that sharply divides the parties in this case is that between the two different “works of authorship” in play—Gaye’s musical composition on the one hand and his sound recording (the “master”) of that composition on the other. (Our previous and more detailed discourse on this subject can be found here.)  The “composition” comprises the music and lyrics as reflected in what is being referred to as the “sheet music version” of the song. The copyright in the master would include all of the production and performance elements that brought the song to life on record.

Gaye’s estate owns the copyright only in the composition, not the master. And that is the line on which Thicke’s legal defense turns. He claims that the similarities between “Blurred Lines” and “Got to Give it Up” which the Gaye estate complains about are elements found in Gaye’s recording, not his composition. The jury disagreed, but I think we can expect post-trial motions and appeals to force a closer look at this defense.

As my friend Charles Cronin—creator of the indispensable Music Copyright Infringement Resource—has written, popular music in recent decades  has been composed almost entirely in recording studios, with musicians often putting only the most basic musical elements on paper, elements usually so rudimentary and unoriginal they fall short of the rather low bar for copyright eligibility. The commercial appeal of popular songs is almost never based what is captured in musical notation, it is based on the recorded performance, including the arrangement and the production elements added in the studio. This was true in 1977 when Gaye recorded “Got to Give it Up,” and it is even more true today with digital recording technologies. Thicke’s legal defense, even if mystifying to the lay person, is not frivolous.

I must comment on one other element of the “Blurred Lines” case that is receiving much attention, Thicke’s admission that despite his co-writer credit, he actually did not contribute to the composition of the song: “The biggest hit of my career was written by somebody else, and I was jealous and wanted credit.” This explanation is being repeated rather credulously in the press.

Eighty years ago the country was riveted by a music copyright case involving the 1933 hit song “Play, Fiddle Play.” The “Gypsy Violinist” Emery Deutsch was credited with principal authorship of the music, but on the witness stand he too admitted that his contribution was nebulous at best. (A full account of the case can be found in my book, Unfair to Genius.) In fact, both Deutsch and Thicke indulged in the time-honored practice of the “cut-in,” in which a performer with the ability to make a song a hit grabs authorial credit and royalties in exchange for that service. Both were forced to ‘fess up only when it became necessary to divulge their songs actual provenance to defend against a charge of copyright infringement.

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