Blurred lines and lost profits

How might the decision on copyright infringement in the case of the hit song ‘Blurred Lines’ affect claims in the UK, asks Matthew Pryke.

On 10 March 2015 a federal jury in Los Angeles held that the 2013 hit song ‘Blurred Lines’ infringed the copyright of Marvin Gaye’s ‘Got To Give It Up’. The jury awarded US$4m in damages and nearly $3m by way of unaccounted profits.

The pay out in this case reflects the remarkable (and rare) success of ‘Blurred Lines’, which reported sales of $14.8m as part of the case. However, the decision has led some, including Pharrell Williams (one of the co-writers), to suggest this decision ‘handicaps any creator out there who is making something that might be inspired by someone else’. Williams has also warned there is a likelihood of copycat litigation, not just in the music industry but also in fashion, design, film making, and other creative industries. So is the decision really as destructive as Williams suggests, and how does this affect claims in the UK?

The expert musicologists used in this case identified eight key similarities between the two songs. These included the hooks, the bass melodies, unusual percussion choices, and themes, collectively referred to as a ‘constellation of similarities’.
In defence, Williams and Robin Thicke (the singer) asserted the similarities between the songs were minimal and merely evoked ‘the mood of an era’, rather than the musical themes protected by copyright. Their expert testified there were no two consecutive notes with the same pitch, duration, and placement in the two tracks. It may be of note that Williams admitted he had been influenced by Gaye’s work. Subsequently, Thicke claimed he had been drunk and high when he stated in interviews he had pretended he and Williams were Marvin Gaye when writing ‘Blurred Lines’.

Crucially, in the UK the case would not have been heard before a jury, but rather a judge with an expert knowledge of copyright law. That judge would have assessed whether a substantial part of the work had been copied, the assessment would be qualitative, not quantitative, and the analysis would have been thorough and specific to the facts.

Therefore, while the recordings may be considered to be similar in mood and style, the extent to which the specific musical elements were similar would have been the focus of this analysis, as well as the numerous and obvious differences, including the lyrics, which would have been assessed as part of this factual analysis.

English case law expressly warns against losing sight of the many differences between alleged infringing works as this is an important element of consideration when determining whether copying has taken place.

Ultimately, it is very difficult to determine whether an English court would have reached a similar decision to a US jury. Unhelpfully, the jury was not required to provide a written judgment explaining their reasoning for finding copyright infringement. Thicke and Williams have made it clear they will be appealing the decision, and it seems likely this is not the last we have heard of this dispute. Given the value of this case, Williams and the other ‘Blurred Lines’ rights holders are unlikely to ‘give it up’ in the near future.

This article first appeared in Solicitors Journal on 8 April 2015.