Posted by Ella Biggs, Nicole Reid and Kylie Diwell
The popular US hit 'Blurred Lines' has been the subject of
allegations of copyright infringement for the song's similarity to two other
songs, Marvin Gaye's 'Got To Give It Up' and Funkadelic's 'Sexy Ways'.
The reported response of the owners of the
copyright in the two earlier works (Gaye's family and Bridgeport Music Inc),
seeking compensation from Pharrell Williams, Robin Thicke and Clifford Harris,
Jr (the composers of 'Blurred Lines'), raises significant issues for copyright
law in relation to where the line between inspiration and infringement lies.
In a highly publicised move, on 15 August 2013, Williams,
Thicke and Harris
filed for a declaration from the Central District Court of
California that 'Blurred Lines' did not infringe the copyright in the earlier
works.
In their submissions to the
Court, the plaintiffs stated that, although 'Blurred Lines' was inspired by
Gaye's music and the song was intended to 'evoke the era' of Gaye, this did not
amount to copyright infringement.
They
sought a declaration by the Court to this effect.
A fundamental principle of copyright law is that it protects
expression, not ideas. This principle
forms the basis for consideration of whether or not copyright has been
infringed. The 'Blurred Lines' case
raises the question of whether merely being reminiscent of the sound of a
musical work infringes the copyright in that work (ie, whether it is the
reproduction of a substantial part of that work). Although this is an American case, the facts
provide a useful way to hypothesise about how copyright law would apply in
Australia, if a similar case were to arise.
To establish copyright infringement in Australia, a court's
analysis focuses on whether a substantial part of the original work has been
used in the allegedly infringing work.
In
EMI Songs Australia Pty Ltd vLarrikin Music Publishing Pty Ltd[1]
(the
Kookaburra Case), it was
alleged that the Men at Work song 'Down Under' infringed the copyright in the
song 'Kookaburra Sits in the Old Gum Tree'.
The Full Federal Court found that the copyright in the earlier song had
been infringed on the ground that the tune of the flute riff that was used in
'Down Under' was a substantial part of the Kookaburra song, notwithstanding
that the flute riff formed only a small part of the infringing work.
The Court made the comment that '
[t]here will
be an infringement [of copyright] if that in which the whole meritorious part
of the original work consists is incorporated in a new work'.
Applying the judgment in the Kookaburra Case to the 'Blurred
Lines' case, it appears that an assessment would be undertaken with regard to
the specific melody or arrangement of notes (or, potentially, another musical
element of the work, such as the rhythm, or a combination of musical elements)
in order to determine whether or not a substantial part of the original work
has been reproduced (the expression
of the work). Without direct reference
to notes or melodies (being the basis on which the
Kookaburra Case was decided), in Australia at least, it would be significantly more difficult to establish that a
substantial part of the original copyright work had been taken, as this would require consideration of the more amorphous aspects of the works (such as the fact that 'Got to Give
It Up', like 'Blurred Lines', is sung in a high male voice and the similar
tempo, use of a cowbell and what one commentator referred to as a 'slinky bass
line' in both of the songs), which are more likely to be considered (non-protectable) ideas.
The plaintiffs are seeking to make this argument in their lawsuit,
arguing that 'Blurred Lines' evokes the era of Marvin Gaye, in an homage to
him, rather than amounting to an (infringing) copying of his work.
We will wait to see if the case does make it to a judgment and, if so,
whether the defendants can succeed in arguing that the musical elements of 'Got To Give It Up' and 'Sexy Ways' are sufficient to
attract copyright protection and have been appropriated in 'Blurred Lines'.
In the
Kookaburra Case, upon
finding that copyright had been infringed by Men at Work, Justice Emmett commented on the significance
of cultural works providing tribute to iconic works without fear of copyright.
(A similar argument is made in this article by Partner Paul Kallenbach.) No doubt these arguments will be relevant
in the case of Williams, Thicke and Harris in their attempt to ascertain the
blurred lines between inspiration and infringement in copyright law.
