“Blurred Lines”: Reexamining the Scope of Copyright Protection in Musical Compositions

On March 21, a split panel for the U.S. Court of Appeals for the Ninth Circuit upheld a jury verdict finding that 2013 chart-topper “Blurred Lines” infringed the copyright in Marvin Gaye’s 1977 classic song “Got to Give It Up.” The panel decided the case, Williams v. Gaye, on relatively narrow procedural grounds, but Judge Jacqueline H. Nguyen warned in her dissent that the decision “establishes a dangerous precedent that strikes a devastating blow to future musicians and composers everywhere.”

The case began more than four and a half years ago, when Marvin Gaye’s heirs sued Pharrell Williams and Robin Thicke over their single “Blurred Lines,” which was the best-selling song worldwide in 2013. In 2015, a jury considered the issue of whether “Blurred Lines” and “Got to Give It Up” were substantially similar, and returned a $5.3 million damages award against Williams and Thicke.

By a 2–1 vote, the Ninth Circuit upheld the jury verdict. The majority opinion, written by Judge Milan D. Smith, Jr., held that the district court did not err in instructing the jury or in admitting both expert testimony and an edited recording of “Got to Give It Up,” even though the infringement claim concerned only Gaye’s copyright to the sheet music deposited with the Copyright Office.

In her dissent, Judge Nguyen wrote that “[t]he majority allows the Gayes to accomplish what no one has before: copyright a musical style.” In particular, Judge Nguyen criticized the majority’s reliance on the so-called “inverse ratio rule,” which sets a lower bar for infringing substantial similarity between two works when the plaintiff can demonstrate that the defendant had significant access to the copyrighted work.

Despite the lengthy dissent, Williams v. Gaye was decided on fairly narrow grounds, leaving open several important questions about the scope of copyright protection in musical compositions. The Ninth Circuit might decide to rehear the case en banc, but given the rarity of such decisions, those questions may continue remain unanswered for the near future.

Ben Sisario, Copyright Verdict Over Song Is Upheld, N.Y. Times, Mar. 22, 2018, at B3

Bill Donahue, ‘Blurred Lines’ Ruling Leaves Big Questions Unanswered, Law360 (Mar. 21, 2018, 8:50 PM), https://www.law360.com/articles/1024899

Bill Donahue, 9th Circ. Says ‘Blurred Lines’ Infringed Copyright, Law360 (Mar. 21, 2018, 11:10 AM), https://www.law360.com/appellate/articles/1024524

Colin Stutz, The ‘Blurred Lines’ Appeal Failed––Now What?, Billboard (Mar. 22, 2018), https://perma.cc/C5Z8-AMAN

Martin Macias Jr., Ninth Circuit Sides with Gaye Family in ‘Blurred Lines’ Fight, Courthouse News Service (Mar. 21, 2018), https://perma.cc/6FPY-8MZX

Williams v. Gaye, 2018 WL 1403577 (9th Cir. Mar. 21, 2018)