A set of eight jurors deciding that Thicke and Pharrell’s 2013 song Blurred Lines ripped off Gaye’s 1977 Got To Give It Up made for a “pretty unusual” case, said entertainment lawyer Susan Abramovitch.
“We actually don’t have a judgment from a court assessing this. It was a jury of people who decided, based on the evidence, that this was copyright infringement and we don’t have any kind of guidance as to their thinking as to what that was,” said Abramovitch, who’s head of the entertainment group at Gowlings LLP.
“We can look at the evidence that influenced them, but we don’t know what particularly drove them.”
The lack of reasoning behind the decision is why EbReinbergs, a Toronto-based entertainment lawyer, believes this case will be appealed.
“The jury would have been charged with doing an analysis and listening to various experts talk about how similar the song is, and other experts talk about how dissimilar the songs are,” he said, adding that the decision likely came down to the credibility of experts and how they presented themselves on the stand.
“So an appeal court is going to take a look at the law and say, ‘Hey, did the jury get it right? Did they not get it right?’” he said. “The question is when this goes to the appeal court, are they going to expand the [copyright] standard? We don’t know. The appeal court has the jurisdiction to do so.”
Sound recording, musical composition copyrights
At the heart of the case is the musical composition copyright and the specific elements — including the bass and keyboard line, the hook and repeated theme — of Got To Give It Up that jurors found to have been replicated in Blurred Lines.
There are two main copyrights that generally apply to songs.
One is sound recording — the actual recording of the music by the performer, which belongs to that performer, the company who produced that recording, or both.
The other is musical composition — the sheet music and the words, which belong to the composer, the lyricist and others involved in coming up with the song. A musical composition doesn’t necessarily have to be in the form of sheet music, but could also be on a cassette tape, LP or CD.
Reinbergs said a decision made by a judge in the potential appeal could expand the definition of copyright to include “style” or “feel” — what the lawyers of Thicke and Williams claim is all that is similar between the two songs.
Jurors were never actually able to listen to the recordings of both songs because Gaye’s family only owned the sheet music, which means they were only able to use that (and a stripped-down rendition of the song based on the sheet music) to make their case of copyright infringement.
“The jurors weren’t able to necessarily compare apples to apples,” said Alan Cross, a radio broadcaster and the host of The Ongoing History of New Music.
“This is music theory. These are things that the average person isn’t really up-to-date on. If you put some sheet music in front of the average person, how many people can read it?” he said.
“They were swayed by the emotion.”
'A chill on songwriting'
Abramovitch said this case could mean people will think twice before composing and writing songs. Even though she said it doesn’t look like Thicke and Williams wilfully took the song, the side-by-side comparison shows that it sounded like Blurred Lines was inspired by Got To Give It Up.
“I think it’s going to put a bit of a chill on songwriting in terms of, you know, allowing yourself to be inspired by other people’s styles or sounds.”
Reinbergs said likenesses between songs can be found everywhere. Recently, Sam Smith and Tom Petty settled a similar copyright dispute out of court for Smith's song Stay With Me and Petty's I Won't Back Down.
“If you step back and you look at music over time, say even over a 10-year period, you’re going to find that songs sound similar.”
Look at the 70s era, he said, when “a lot of disco songs have the same chord structure.” Look at house music in the 80s and 90s, he added.
“There’s a reason when I hear a house song I can say that’s a house song because I categorize it as being similar to another group of songs. So how far do we go with similarities?”
“What this case is doing is testing the boundaries of that.”