In a west coast American Court, a jury determined that the 2013 hit “Blurred Lines” infringed the melody of the 1977 Marvin Gaye hit “Got to give it Up”.
The US legal system insofar as copyright is concerned, is hugely different to the UK.
To qualify for copyright protection in the US, it is a pre-requisite that the works are registered with the US Patent & Trade Mark Office. In the UK, any qualifying works will obtain automatic protection. Under UK law, qualifying works are defined as “original works capable of being represented in a literary, artistic, musical, dramatic format and/or sound recordings, films, broadcasts or cable programmes and/or the typographical arrangement of published editions”.
It is rare (to the point of almost being uncommon) for civil matters to be determined by a Jury as was the case here. If this dispute had been brought within a Court of England and Wales, it would have been determined by a Judge.
As such, would a Judge hearing the same evidence have reached the same conclusion as the jury did?
Copyright law is governed by the Copyright, Designs and Patents Act 1988 (“CDPA”). Given the nature of this dispute, the Court would have undoubtedly been directed to Section 17(2) CDPA which states “Infringement of copyright by copying..copying in relation to a literary, dramatic, musical or artistic work means reproducing the work in any material form. This includes storing the work in any medium by electronic means”.
What this means is UK law determines infringement on a qualitative basis and not a quantitative basis and so, irrespective of whether or not the infringement is a few seconds or an undetermined length of time, the Court may well take the view that infringement will have occurred.
It is understood that Pharrell Williams admitted in Court that he was a fan of Marvin Gaye and that his music [regularly] influenced him but had not in this instance.
It may well be the case but what the Court would have to consider is whether or not Pharrell’s sub-conscious was ‘alive enough’ to create a rhythm / beat that was qualitatively similar to Marvin Gaye’s hit?
Whilst no musician, it appears if you play the “Blurred Lines” melody over the “Got to give it up” melody, musically, in my view, it doesn’t fit. If this is the case, how was the Jury able to find that the same infringed? Based on the [limited] reporting to date, it appears that the finding was based on the conceptual basis that the songs “felt” the same. Perhaps Pharrell’s admission of wanting to pay homage to Marvin Gaye is what persuaded the jury.
What is interesting to consider is whether or not a Judge determining this matter would have come to the same decision when applying the rules and the appropriate legislation.
My view is that the decision would have found in favour of Williams and Thicke and not the Gaye family.
Whilst the outcome itself is prejudicial to Pharrell Willams and Robin Thicke (in that they have to pay around $7,000,000.00 to the Gaye family), it is the implications of the Judgment that must have on the wider music industry.
Sam Smith was recently forced to give ‘credit’ to Tom Petty in respect of his (Smith’s) Stay with Me track with regards to similarities of a track that was created before Smith was even born.
Musical ‘homage’ is not a new concept. Everyone from the Beatles to David Bowie to Oasis to Lady Gaga must at some point have created a hit off the back of once hearing / being within the vicinity of a track written by another artist.
Consequently, will the lines between originality and ‘homage’ become more blurred with Judgments being entered more regularly or will decisions such as this stifle originality?