Copyright’s Blurred Lines

Article written by: Penny CatleyDeborah Kessell-Haak    |   Wednesday 4th December 2013

It appears that the battle of the ‘sound-a-likes’ is heating up.  Hot on the heels of Audi admitting that in an advertising campaign for the A6 Avant, it used a backing track that resembled Eminem’s song “Lose Yourself”, the Estate of the late Marvin Gaye is suing Robin Thicke and his collaborators in relation to the hit song ‘Blurred Lines’.

According to the family, Blurred Lines is a copy of Marvin Gaye’s 1977 song ‘Got to Give it Up’.  What makes this case interesting is that Robin Thicke stated in an interview with GQ that he took inspiration from the song when writing Blurred Lines:

“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.” Then he started playing a little something and we literally wrote the song in about a half hour and recorded it.”[1]

So where do you draw the line between inspiration and copying?

This is an extremely difficult question with which the courts worldwide continue to grapple.  Writing something “with that groove” or within a particular style of music will likely fall on the “inspiration” side of the line.  If the song is truly original, any similarities could be due to technical limitations in composing a style or genre of music. 

If, however, the starting point is the original song which the composer altered to make it different, then this will constitute “altered copying”.[2]  The fact that the composer expended time, skill and effort in modifying the original work, is largely irrelevant.  Noting that ‘substantial’ in a copyright sense is a qualitative rather than a quantitative measure, the assessment will involve consideration of the effort, skill, and judgment used to produce the original song and then realistically, a consideration of whether the original song provided the basis for a substantial part of the offending work?[3]     

The answer will depend on the quality of evidence that can be adduced to show “substantial” copying.  The evidence will no doubt be supported by a bewildering array of contradictory expert opinion from both sides so it should be an interesting case to follow. Watch this space…
 


[1] Stelios Phili, “Robin Thicke on That Banned Video, Collaborating with 2 Chainz and Kendrick Lamar, and His New Film” 7 May 2013: see http://www.gq.com/blogs/the-feed/2013/05/robin-thicke-interview-blurred-lines-music-video-collaborating-with-2-chainz-and-kendrick-lamar-mercy.html, last accessed 8 November 2013
[2] Designers Guild v Russell Williams (Textiles) Ltd [2001] 1 All ER 700, [2000] 1 WLR 2416, [2001] FSR 113  (HL), at 714, 2431, 130 per
[3]Bleiman v News Media (Auckland) Ltd [1994] 2 NZLR 673, (1994) 6 TCLR 56, 5 NZBLC 103,446  (CA)

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