United States: Can You Name That Tune? Minor Drop, Major Infringement

Music artists have found it difficult to discern which creative grounds are safe to tread and which creative paths lead to copyright issues in recent years

When law and pop culture intersect, everyone has an opinion. Several recent high-profile copyright cases involving chart-topping songs have drawn attention to an area of the law that is not well understood.

will explain the path from Williams v. Gaye ("Blurred Lines"), to Skidmore v. Led Zeppelin ("Stairway to Heaven"), and Gray v. Perry ("Dark Horse"),so that you can throw down the law the next time you hear one of these songs at a cocktail party.

Blurred Lines began as an equitable action by Pharrell Williams, Robin Thicke, and the rapper "TI" to declare their song "Blurred Lines" was not infringing against Marvin Gaye's 1976 hit, "Got to Give It Up." Marvin Gaye's estate counterclaimed for a declaration of infringement and for damages. "Blurred Lines" was Billboard's 2013 "Song of the Summer." It was ubiquitous because it was catchy. With a party background, funky bass, a smooth hook, and a dose of cowbell, "Blurred Lines" was the perfect summer party song. Was it a coincidence that Marvin Gaye scored a hit with the same elements in "Got to Give It Up" a few decades earlier? Did Gaye's creation preclude others from using that recipe? A jury decided that it was copyright infringement, and an appeals court upheld the verdict, primarily on procedural grounds, but not without a stinging dissent warning that the decision upended the concept of "protectable expression" and would open the floodgates for composers to claim rights in a genre.

Central to the outcome in Blurred Lines was how the "inverse ratio" rule factored into the "substantial similarity" test. The inverse ratio rule is a doctrine in copyright law that provides that the greater evidence there is that a defendant had access to a copyrighted work, the less similar the infringing work needs to be to give rise to an inference of copying. Not long after the Blurred Lines verdict made headlines, however, the U.S. Court of Appeals for the Ninth Circuit abandoned the rule in its Stairway to Heaven decision, in a move that likely gave the music industry some comfort. This was followed quickly by a federal court decision throwing out a verdict against Katy Perry that her single "Dark Horse" infringed the copyright of a littleknown song by a niche artist.

To understand how these cases came about and what they mean for the future, we look first at the elements of an infringement claim: the plaintiff needs to show that (1) the plaintiff owns the work, and (2) the defendant copied protected elements of the work. Copying is frequently proved by circumstantial evidence that the defendant had "access" to the claimed work and that the two works are "substantially similar," i.e., they are too similar for the accused work to be original.

Substantial similarity is determined by two tests: an extrinsic test focuses on whether protectable portions of the two works when analyzed objectively are substantially similar; an intrinsic test focuses on whether the overall impressions of the works are substantially similar.

• The extrinsic test involves breaking down the work into constituent elements, identifying protectable elements, and determining whether there is substantial similarity between the protectable elements. Expert testimony, typically from a musicologist, is generally used. Motions for summary judgment and directed verdict typically rely on the extrinsic test
• The intrinsic test, focusing on subjective impression, is reserved for the trier of fact. If the copyright claim survives the extrinsic test, a jury may determine "whether the ordinary, reasonable person would find the total concept and feel of the works to be substantially similar." In other words, members of a jury are trusted to "know [similarity] when they hear it."

"Blurred Lines"

In 2018, the Ninth Circuit affirmed a significant jury verdict in favor of Marvin Gaye's estate against Williams and Thicke. See Williams v. Gaye, 895 F.3d 1106 (9th Cir. 2018) (Blurred Lines). The decision garnered significant interest and consternation; critics predicted that it would allow artists to copyright musical styles or genres. The decision warrants a closer look, however, because it rests on very narrow grounds

"Got to Give It Up" was recorded in 1976 and released in 1977, missing the January 1978 effective date of the 1976 Copyright Act. Under the applicable 1909 Copyright Act, protection of a song extends only to the written music filed with the U.S. Copyright Office at registration, not the sound recording heard on the radio. The deposit copy of "Got to Give It Up" consisted of six pages of sheet music handwritten by an unidentified transcriber (Marvin Gaye did not read music). Id. at 1160. Not every aspect of the sound recording was reflected on the deposit copy.

Cross-motions for summary judgment based on the extrinsic test presented expert musicologist reports for each side. Id. at 1161. Gaye's expert identified eight similarities between the songs:

1. signature phrase;
2. . hooks (a repeated phrase, lyrical, musical or both, that grabs the ear of the listener);
3. hooks with backup vocals;
4. a musical theme identified as "Theme X";
5. backup hooks;
6. bass melodies;
7. keyboard parts; and
8. unusual percussion choices.

Thicke's expert opined that there were no substantial similarities among protectable elements; some similar elements were not part of the deposit (the copy of the work presented); and others were too common to protect. Rather than resolve the issue of competing protectable-element claims based on the extrinsic test, the district court held that issues of fact warranted a trial and denied the parties' motions for summary judgment.

At trial, the judge denied Gaye's request to play the sound recording of "Got to Give It Up." As a result, certain aspects of the song, such as the party noise, cowbell, and some other elements that were not evident in the transcript (deposit copy), were not presented to the jury. However, the Thicke parties testified that they were familiar with and inspired by Gaye's song—circumstantial evidence of copying. Given these admissions and the duration of time that "Got to Give It Up" was accessible, it was easy for a jury to infer copying under the inverse ratio test.

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Originally published 20 August, 2020

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