Keith O’Connor is an entertainment attorney in NYC. Follow him on Twitter.
On March 10, 2015, a California federal jury found that “Blurred Lines,” the biggest hit song of 2013, infringed on Marvin Gaye’s 1977 hit “Got to Give it Up” and awarded the late soul singer’s family nearly $7.4 million. The verdict, which sent shockwaves across the music industry, could potentially set off an avalanche of copyright infringement lawsuits involving songs that evoke a feeling, melody, style or genre of previously recorded songs.
The legal clash began in August 2013 when “Blurred Lines” was still the number one song in the country. Attorneys for Pharrell Williams, Robin Thicke and rapper T.I. (a.k.a. Clifford Harris Jr.) sought declaratory relief that “Blurred Lines” was not a copyright infringement of Gaye’s “Got to Give It Up.” The “Blurred Lines” co-writers contended, “being reminiscent of a ‘sound’ is not copyright infringement.” Richard Busch, attorney for the Gaye family, believes they did not imagine the heirs had the resources or the wherewithal to fight. Painting his clients as the underdog taking on a “big machine,” Busch called Willams and Thicke “bullies” who wanted to use their charm and celebrity status to litigate the case in the media. The Gaye heirs filed counterclaims and initially sought $25 million, alleging that “Blurred Lines” was an unauthorized derivative of “Got to Give It Up.”
THE SENSATIONAL DEPOSITIONS
In September 2014, the media obtained copies of explosive depositions given by Thicke and Williams that addressed issues of song writing credits, lying to the media and Thicke’s drug and alcohol abuse. During the contentious pre-trial procedure, Thicke had to backtrack on prior statements he made to the media about the creation of “Blurred Lines” and admitted to being drunk and high during the recording of the song. Thicke went on to confess that he “didn’t do a sober interview” after the song’s release, which explained his numerous statements to the media about how Gaye had inspired his work. For example, Thicke told GQ:
“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.”
Under oath, Thicke was forced to admit that his involvement with the song’s creation was limited and that he simply sang Williams’ lyrics. He conceded:
“To be honest . . . I was high on Vicodin and alcohol when I showed up at the studio. So my recollection is when we made the song, I thought I wanted — I — I wanted to be more involved than I actually was by the time, nine months later, it became a huge hit and I wanted credit. So I started kind of convincing myself that I was a little more part of it than I was and I — because I didn’t want him — I wanted some credit for this big hit. But the reality is, is that Pharrell had the beat and he wrote almost every single part of the song.”
Williams backed him up. During his own deposition, Williams explained why Thicke was given a co-writer credit, which entitles him to approximately 20 percent of publishing royalties:
“This is what happens every day in our industry . . . You know, people are made to look like they have much more authorship in the situation than they actually do. So that’s where the embellishment comes in.”
Williams did go on to credit Thicke’s voice with holding the song together. When pressed on why he refused to credit the bassline and keyboard with holding the song together, Williams explained thusly:
“Because it’s the white man singing soulfully and we, unfortunately, in this country don’t get enough — we don’t get to hear that as often, so we get excited by it when the mainstream gives that a shot. But there’s a lot of incredibly talented white folk with really soulful vocals, so when we’re able to give them a shot — and when I say ‘we,’ I mean like as in the public gives them a shot to be heard, then you hear the Justin Timberlakes and you hear the Christina Aguileras and you hear, you know, all of these masterful voices that have just been given, you know, an opportunity to be heard because they’re doing something different.”
The sensational depositions created a firestorm of media attention and provided ammo for the Gaye’s legal arsenal. In court papers, the heirs highlighted Williams’ and Thicke’s deceit and lack of respect for the judicial process. In a scathing criticism, the heirs noted, “Thicke, for his part, now claims he made all of his statements while drunk or on drugs, none of them true, and he mentioned Marvin Gaye only to sell records . . . This complete contempt for the judicial system, and their obligations to tell the truth, can best be summed up by Thicke’s ultimate admission, while under oath, that he ‘[does not] give a f—k’ about this litigation.”
THE HIGH STAKES TRIAL
The trial, which took place over eight days in a Los Angeles federal court, featured colorful testimony from Thicke, Williams, musicologists, accountants and expert witnesses. The closely guarded accounting practices of the music industry were exposed for all to see. An accounting revealed that “Blurred Lines” generated $16,675,690 in profits with $5,658,214 going to Thicke and $5,153,457 going to Williams. Rapper T.I., whose contribution to the song was recorded separately, received $704,774. Interscope, UMG Distribution and Star Trak, the record companies, pocketed the remaining profits and an executive testified that there were $6.9 million in overhead costs associated with the creation of “Blurred Lines.” The heirs were now seeking $40 million, which included the profits from sales and the revenue generated from ancillary sources such as tours. The stakes were high.
At issue was whether or not “Blurred Lines” infringed on the notes and lyrics of “Got to Give it Up.” Remarkably, Gaye’s original sound recording of “Got to Give it Up” was not played at trial because the laws in 1977 only allowed for the sheet music composition (notes and lyrics) to be copyrighted, not the actual sound recording. Therefore, the judge ruled that jurors were only permitted to consider the file that was on paper at the Library of Congress. Instead of hearing Gaye’s actual recording, jurors heard a version of “Got to Give it Up” based solely on the sheet music that Busch called a “Frankenstein-like monster” that didn’t accurately represent Gaye’s song.
Howard King, attorney for the “Blurred Lines” artists argued, “no one owns a genre or a style or a groove. To be inspired by Marvin Gaye is an honorable thing.” King contended that “Williams sat down and wrote the song, wrote the music, in an hour” and that the jury should disregard Thicke’s prior claims that he was inspired by Marvin Gaye to write “Blurred Lines.” King told the jurors that the impact of their decision could affect the future of music and have a chilling effect on artists who are creatively inspired by other artists. “This [decision] affects the creativity of young musicians who hope to stand on the shoulders of other musicians,” King said. “Let my clients go forth and continue to do their magic.”
Busch and the Gaye heirs implored the jury to focus on the facts and ignore Williams’ and Thicke’s celebrity charisma. During opening arguments, Busch stated, “[t]hey will smile at you and they will be charming . . . keep one thing in mind: [t]hey are professional performers.” In addition to highlighting Thicke’s contradictory statements about the song’s creation, Busch also utilized musicologists to prove copyright infringement. The musicologists testified that there were eight distinct elements from “Got to Give It Up” that were used in “Blurred Lines.” The jury agreed.
Despite the legal setback of not being permitted to play the actual sound recording of “Got to Give it Up”, the heirs prevailed and were awarded nearly $7.4 million. It was determined that Thicke and Williams both infringed and had to pay $4 million in damages. Ultimately, the jury accepted Busch’s argument that the family would have received a 50 percent share of the $8 million in “Blurred Lines” publishing revenue if “Got to Give It Up” was properly licensed. Additionally, Thicke and Willams also had to give up approximately $3.4 million in profits.
Gaye’s daughter Nona Gaye wept as the verdict was read and was hugged by Busch. “Right now, I feel free,” she said outside court. “Free from … Pharrell Williams and Robin Thicke’s chains and what they tried to keep on us and the lies that were told.”
Copyright lawsuits in the music industry are commonplace; however, most settle prior to ever reaching trial. Plaintiffs file suit with the hopes of receiving a cash settlement, a co-writing credit to secure royalties in the future and/or an injunction to prevent the reproduction, distribution or sale of the song. The “Blurred Lines” verdict could potentially have a dangerous chilling effect on creative artists who seek to emulate a feeling, groove or style of music from past eras. This chilling effect could prevent music from being made that would enrich our culture and improve our daily lives. What would 2013 have been like without “Blurred Lines” playing everywhere?
It is important to note that jury decisions do not create binding legal precedent and King has vowed to appeal the decision. King states, “We owe it to songwriters around the world to make sure this verdict doesn’t stand. My clients know that they wrote the song ‘Blurred Lines’ from their hearts and souls and no other source . . . We are going to exercise every post trial remedy we have to make sure this verdict does not stand. We look at it as being in the seventh inning of a game that could go into extra innings.” Stay tuned.