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    Thicke trying to bring some clarity to Gaye's estate's accusation over "Blurred Lines"
    Posted: 2013-08-28 16:32:51


    Robin Thicke has made the first move by initiating a pre-emptive copyright battle against Marvin Gaye’s estate. Thicke's lawsuit comes after Gaye's estate accused Thicke of using elements of Gaye’s song “Got to Give It Up” in his single “Blurred Lines.”  Thicke initiated the legal battle after Gaye’s estate reportedly rejected a 6 figure settlement offer.

    The lawsuit, filed in U.S. District Court in Los Angeles, requests a declaration that "Blurred Lines" does not infringe on "Got To Give It Up". Thicke admits that he was inspired by the Marvin Gaye song but insist that he did not copy the song directly. Reports are that the lawsuit states that the:
    "Plaintiffs, who have the utmost respect for and admiration of Marvin Gaye, Funkadelic and their musical legacies, reluctantly file this action in the face of multiple adverse claims from alleged successors in interest to those artists. Defendants continue to insist that plaintiffs' massively successful composition, 'Blurred Lines,' copies 'their' compositions."

    Thicke argues in the lawsuit that the "intent in producing 'Blurred Lines' was to evoke an era. In reality, the Gaye defendants are claiming ownership of an entire genre.... The reality is that the songs themselves are starkly different."

    It appears as though Thicke may have a case here. The Copyright Act states that:

     
    "For the purposes of this Act, “copyright”, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right."

     

    In other words, a copyright holder has sole right to reproduce work or substantial part thereof. In this case, what is important to note is the “substantial part” thereof. Copyright protects artists in cases where only small changes have been made to a work. Copyright doesn't protect artists who have inspired a genre or who have a distinctive 'sound'. Music in particular has a very long history of borrowing and sharing inspiration.

    Gaye's estate would have multiple copyrights to different pieces of the song. For example, the lyrics alone would be subject to a copyright, but so would the music for the guitar, for the drums, and for each other part of the song. There would be copyright in the production of the whole piece as a composition. If you listen to the song then you know that Thicke's song doesn't share lyrics with Gaye's. Neither do they share compositions. They do have a shared beat or “sound”, but is it the old song dressed up, or a new work inspired by the old?
    A helpful example is Hawkes & Sons (London) Limited v. Paramount Film Service, Limited , a case where a 20 second segment of a 4 minute song was played in the background of a newsclip. The newsclip was found to be infringing because the nature of the song was so recognizable, it was held that anyone who heard the clip would be able to identify the song.

    You can listen to the song then you can decide for yourself whether “Blurred Lines”  falls into this definition of substantial. Did Thicke take essence of Gaye's song?

    Others have remarked that the song sounds similar to other songs in the genre. Is this relevant? Absolutely. If the Gaye family does not own the material that they are claiming copyright in, then they cannot succeed with a copyright claim. It seems as if you can dissect the song in many ways.

    What we can say is that Thicke and his legal team must feel they have an issue if they made an offer to settle. This being said, settlement offers don’t mean that they admit guilt or liability. Often times they are merely a business decision - choosing to minimize legal costs and the risk of going through a prolonged legal battle. Thicke's action of initiating the case himself should lead you to believe that his legal team thinks he's standing on firm ground. He wouldn't have initiated an action unless he was reasonably certain he had a case.

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