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BLURRED LINES

Fortunately, this type of case ain't too common in Australia...

Words by Marcus Walkom

You’ve got to give it up to the lawyers for the estate of Marvin Gaye — the recent decision by the jury of the California District Court has resulted in some blurred lines for all songwriters…

Paul McCartney famously confessed to Guitar Player magazine in 1990, “a good artist borrows, a great artist steals — or something like that. That makes The Beatles great artists because we stole a lot of stuff.”

This famous quote from McCartney is of course incredibly pertinent when it comes to modern popular music — there’s always been some blurred lines when we consider the originality of some of the greatest songs of all time. Led Zeppelin have recently been battling the estate of a deceased and relatively unknown Randy California – the songwriter and frontman of the Californian rock group Spirit – who has argued that Led Zeppelin’s seminal rock ‘n’ roll opus “Stairway To Heaven” ripped off the chords of Spirit’s 1968 track “Taurus”.

George Harrison was found guilty of “subconscious plagiarism” on his 1970 smash-hit “My Sweet Lord” and more recently British crooner Sam Smith reached a settlement with Tom Petty and Petty’s “I Won’t Back Down” co-writer Jeff Lynne, with Petty and Lynne being awarded a 25% songwriting split on Smith’s Grammy award-winning “Stay With Me”.

But perhaps the most interesting of all copyright infringement matters in the music world of late relates to the recent claim by the estate of Marvin Gaye against Robin Thicke, Pharrell Williams and rapper T.I for their chart-topping (and now doubly controversial) track “Blurred Lines”. Interesting for some (but not Williams and Thicke) as a California federal jury awarded the Gaye estate USD$7.4 million in damages. But most interesting for musicians and their various representatives as the decision has the potential to have a lingering impact on the music industry, blurring the line (sorry my last pun I promise!) between artistic inspiration and infringement.

The claim related to the apparent similarities between the Gaye track “Got To Give It Up” and “Blurred Lines” which came to the attention of the Gaye Estate not long after the release of the former track in March 2013. It should be noted however that this matter came before the California District Court at the instigation of Williams and Thicke. The modern day superstars – subscribing to the notion that the best defence is an aggressive offence – filed a pre-emptive action in the Court seeking a declaration that “Blurred Lines” did not in fact infringe “Got To Give It Up”. This is an approach quite uncommon in Australia.

Traditionally copyright infringement claims relating to the “borrowing” of other songs in Australia have either not been pursued in the Courts or, where they have, been settled prior to completion of the full legal process. A copyright infringement claim in the music world in this territory is in most instances a difficult claim to pursue for an aggrieved artist and – being a potentially incredibly expensive exercise – any such claim is often reserved to those with the backing of a major publisher. This therefore means that when an allegation of infringement is made against an artist in Australia, such artist (or their publisher) will look to resolve the matter as expeditiously, quietly and as cheaply as possible and prior to the matter being more formalised in the Courts.

But back to our Yankee friends. The Gaye estate – quite rightly it seems – filed a counterclaim alleging copyright infringement by Williams and Thicke and seeking more than USD$25 million in damages. The claim related specifically to an infringement of the copyright in the musical composition of “Got To Give It Up” where the Gaye estate alleged that Williams and Thicke copied and incorporated at least eight “distinctive and important compositional elements” of “Got To Give It Up” in “Blurred Lines”. Importantly, the Gaye estate only owns and controls the copyright in the musical composition and does not own the studio recordings of the composition. As such the Gaye estate was somewhat handicapped by the decision of the trial Judge precluding the Gaye estate from playing the recording to the jury (however the Judge did allow stripped back versions of “Got To Give It Up” in addition to a Thicke-performed piano medley — a tactic utilised by Thicke’s legal team to show that many songs share similar chords and melodies without there necessarily being infringement.

Both parties sought to rely on the extensive evidence of expert musicologists during the trial to support their arguments (each unsurprisingly supporting their particular commissioning party’s position).
Both parties also closely examined the entertaining deposition provided by Thicke which alleged he was drunk and high on Vicodin during not only the recording process but also during those interviews after the release of “Blurred Lines” where Thicke stated the song was inspired directly by “Got To Give It Up”. But after an entertaining two week trial the jury awarded in favour of the Gaye estate. The decision of the eight member jury was ultimately based on the claims by the Gaye estate’s legal team that the relevant infringement related to the similarities in signature phrase, hook, keyboard-bass interplay, lyrics and theme of “Blurred Lines” with Gaye’s “Got To Give It Up” — ultimately the “feel” or “sound” of the songs.

Copyright infringement claims in the music world generally relate to the specific lifting of chord structures, melody or lyrics, but not to the feel or style. Williams’ and Thicke’s legal team put it more broadly in the claim that “the Gaye defendants are claiming ownership of an entire genre, as opposed to a specific work”. This raises issues related to the idea vs. expression dichotomy of copyright law, namely that copyright protects only the original expression of an idea but not the idea itself. That is – in this specific instance – only those original parts of the Gaye composition would be protected by copyright law and not the more common and generic parts of the song ie the feel or style.

The concern for some is that this decision could potentially open up the floodgates to more claims alleging an infringement based on the reproduction of the “feel”, “style” or “sound” of prior musical works and as a product of inspiration, rather than the former and more settled position requiring the alleged infringing work to effectively incorporate a prior work into the infringing work.

But unlike our US counterparts this decision is unlikely to have any significant influence in Australia for a number of reasons. Firstly the decision out of the US will have no precedential value in Australia as Australian Courts are only bound by the previous decisions of those Courts higher in the hierarchy of Australian Courts. Secondly infringement of copyright in Australia requires a determination of a two stage process: (i) whether a “substantial part” of the original copyright work has been taken and incorporated into the infringing work; and (ii) that there is an objective similarity between the infringing work and the original work. Such an assessment by the Courts in comparing the works is to be qualitative and not quantitative ie. it does not matter how much of the original work was allegedly used in the infringing work, but whether the part incorporated was a vital or integral part of the original work. Primarily consideration will be attributed to the melody, key, tempo and harmony of the works being compared, but ultimately the main consideration for Australian Courts will be whether the two specific requirements for infringement have been satisfied.

The closest the Courts in Australia have come to a decision similar to that of the Blurred Lines case was in 2011 in relation to perhaps two of Australia’s most archetypal songs – Men At Work’s “Down Under” and the classic “Kookaburra Sits In The Old Gum Tree”. While some pundits feared that further claims would likely occur as a result of the “Down Under” decision, it does not appear that the floodgates have opened since 2011. Similarly it does not appear likely that the Blurred Lines decision will have any real impact in Australia other than perhaps acting as a warning to even those “good” Australian artists who “borrow.” Be careful while being creative — You never know who may be listening.

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