From Blurred Lines to Blurred Law: an Assessment of the Possible Implications of "williams v. Gaye" in Copyright Law

• Publication year: 2021

From Blurred Lines to Blurred Law: An Assessment of the Possible Implications of "Williams v. Gaye" in Copyright Law

Hannah Patton

University of Georgia School of Law

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FROM BLURRED LINES TO BLURRED LAW: AN ASSESSMENT OF THE POSSIBLE IMPLICATIONS OF WILLIAMS V GAYE IN COPYRIGHT LAW

Hannah Patton^*

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Table of Contents

I. Introduction..............................................................................................253

II. Background................................................................................................257

A. Copyright Law..................................................................................257

1. Source and Purpose of U.S. Copyright Law.............................257
2. Development of U.S. Copyright Law........................................258
3. Substantive Requirements and Subject Matter of Copyright.........................................................................................259
4. Establishing a Copyright Infringement Claim..........................261

a. Access.......................................................................................261
b. Substantial Similarity..............................................................262

5. Limits of Copyright Protection...................................................263

B. The Blurred Lines Case................................................................264

1. The Blurred Lines Case: Factual Background and Procedural History.........................................................................264
2. The Blurred Lines Case: The Appellate Decision.........................266

a. The Majority............................................................................266
b. The Dissent.............................................................................267

III. Analysis.........................................................................................................267

A. Copyright Law and Film...............................................................268

1. Marcus v. ABC Signature Studios, Inc.......................................268
2. Sheldon Abend Revocable Trust v. Spielberg..........................269

B. Differential Treatment Between Kinds of Works........270

IV. Conclusion...............................................................................................271

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I. Introduction

"'. . . [W]e should make something like that, something with that groove.'"¹ When R&B singer-songwriter Robin Thicke stated those now infamous words in a May 2013 interview for GQ magazine, he was at the height of his music career. His new single, "Blurred Lines," featuring T.I. and Pharrell Williams, was a chart-topping sensation.² With an upbeat tempo and rhythmic hook, the song was an instant hit, catching the attention of a wide audience of music listeners, and it quickly became apparent that its popularity would be anything but shortlived. After its successful debut, "Blurred Lines" continued to hold the number one spot on Billboard's Hot 100, R&B, Hip-Hop, and Pop charts, while steadily climbing to the top of others, making it Billboard's "Song of the Summer."³ Furthermore, the accompanying music video was equally, if not more, successful, as it went viral with more than 62 million views in three months.⁴ Clearly, the "groove" that inspired Thicke was something special—or was it?

This "groove" Thicke mentioned in the GQ interview was a tribute to Marvin Gaye's 1977 hit "Got To Give It Up."⁵ When asked to describe the origin of his new single "Blurred Lines," Thicke recalled a conversation he had in the studio with collaborator Pharrell Williams.⁶ Specifically, Thicke said he stated to Williams that "one of [his] favorite songs of all time was Marvin Gaye's 'Got To Give It Up,'" and he and Williams "should make something like that, something with that groove."⁷ Within a half-hour of experimenting with the "groove," Thicke and Williams wrote "Blurred Lines," and the entire song was recorded and finished within two hours.⁸ At the time, Thicke likely considered his

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interview answer a harmless, typical response to a common question in the music industry. He, like many other R&B singer-songwriters, clearly admired Gaye's music and likely considered him a creative influence for his artistry and craft. Therefore, what was the harm in describing the inspiration for the song he and williams created?

However, after the interview was published, Thicke was confronted with backlash from members of Marvin Gaye's estate, who claimed that "Blurred Lines" copied the composition of Gaye's "Got To Give It Up."⁹ In response to the accusations that this hit single was not an original, the "Blurred Lines" collaborators filed suit against the Gaye family and Bridgeport Music, Inc.¹⁰ in California federal court in August 2013.¹¹ They sought a declaratory judgment that their composition did not infringe on Gaye's 1977 hit.¹² In March 2018, after a five-year legal battle of counter-claims and appeals, the Ninth Circuit Court of Appeals settled the matter.¹³ The court affirmed the California District Court's verdict that Thicke and williams were liable for copyright infringement and awarded the Gaye family $5.3 million in damages.¹⁴

Upon the announcement of the Ninth Circuit's decision, panic spread throughout the entertainment industry. Many began to fear that the Ninth

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Circuit's decision could establish a precedent that a "vibe, feeling, or genre" of music, elements that traditionally are not covered by copyright, would now be subject to protection.¹⁵ Therefore, many contend that The Blurred Lines Case could ultimately result in a "chilling effect" on creativity¹⁶ because it would encourage litigants to base infringement suits on the "feel" of the song as opposed to how "it is actually written."¹⁷

As one of the most controversial and high-profile copyright infringement suits of the decade, The Blurred Lines Case and its possible implications for the music industry have received thorough examination by pundits, academics, and lawyers alike.¹⁸ Moreover, the fear that immediately paralyzed an entire field of artists still pervades the music industry post-Blurred Lines. In fact, the increased number of infringement suits and substantial damage awards for plaintiffs since the Ninth Circuit ruled in favor of the Gaye family have worsened this fear.¹⁹

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However, music is just one area of copyright law. Was it possible that other creative industries should share this concern as well?

This Note seeks to examine the following questions: given the rise of copyright infringement claims in the music industry and the substantial uncertainty surrounding creativity that exists in this area of copyright law after The Blurred Lines Case, can artists expect this trend to spread to other types of protected creative works, in particular, motion pictures and other audiovisual works? Or, is it more probable that the implications of The Blurred Lines Case will remain contained within the music industry? In the case of the latter, does this mean that different kinds of creative works are treated differently under copyright? If so, should this disparity be permitted?

By conducting a thorough analysis of The Blurred Lines holding, its implications, and copyright law, this Note argues that the results of the present case is unlikely to spread to other areas of copyright law. Part II provides a general background of copyright law. Part II also provides a more detailed discussion of The Blurred Lines Case, to serve as context for stating and analyzing the questions presented here.

In Part III, this Note conducts an analysis of the current state of other areas of copyright law, focusing on film, motion pictures, and other audio-visual works. Specifically, this section will analyze case law to determine what facts, arguments, and methods of reasoning are typically presented by plaintiffs in these kinds of infringement lawsuits. Then, it will assess the relative success of these plaintiffs in obtaining verdicts in their favor. After this undertaking, this Note predicts how the implications of The Blurred Lines Case are not likely to spread beyond the film industry. Part III of this Note then argues that the application of copyright protection varies across different types of creative works. Finally, Part III considers arguments as to whether this disparity in protection should be permitted.

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II. Background

A. COPYRIGHT LAW

1. Source and Purpose of U.S. Copyright Law

U.S. copyright law begins with Article I, Section 8, Clause 8 of the U.S. Constitution, which is commonly referred to as "the Copyright and Patent Clause."²⁰ This clause provides that Congress "shall have Power . . . to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."²¹

The Court has generally interpreted the Copyright Clause to mean that the purpose of copyright protection is to "enrich[] the general public through access to creative works,"²² and to "motivate the creative activity of authors and inventors by the provision of a special reward"²³ that exists "in the form of control over the sale or commercial use of copies of their works."²⁴ Thus, these characterizations of the Copyright Clause demonstrate that the authority to grant copyright to an individual rests "on the dual premises that the public benefits from the creative activities of authors and that copyright protection is a necessary condition to the full realization of those creative activities."²⁵ This rationale allows for the implicit assumption that "absent a public benefit, the grant of copyright to individuals would be unjustified."²⁶

The Copyright Clause gives Congress the power to enact legislation "to provide copyright protection to the extent [it] sees fit."²⁷ That is, copyright is...