Blurred lines? Not that blurred actually

March 11, 2015

The jury in the hotly anticipated ‘Blurred Lines’ case has found that Pharrell Williams and Robin Thicke copied Marvin Gaye’s 1977 hit “Got To Give It Up” to create the massively successful hit single. Does this set a “horrible precedent” as the defendants’ spokesman claimed? The answer, in English law at least, is no. The two songs sound very similar, have a similar beat, similar percussion, and similar bass lines, but the tunes are significantly different. They definitely share a “feel” as Williams said in evidence, and that feel is so close that Williams admitted in court that “it sounds like you’re playing the same thing” when listening to the two bass lines. But the similarity is in the feel rather than in the actual notes used, and many songs “feel” like other songs. Is that enough to amount to infringement? The answer is yes, it can be. The defendants’ lawyer said “the question is whether Blurred Lines is a copy of what he [Gaye] wrote in the sheet music. And it’s not.” This is misleading. In all infringement cases involving music the musicologists don’t look at the sheet music; instead they listen to and analyse the recording of the song, and that’s because the music is more than just the notes. As the Court of Appeal said in the2005 Sawkins v Hyperion case: “Music must be distinguished from the fact and form of its fixation as a record of a musical composition. The score is the traditional and convenient form of fixation of the music and conforms to the requirement that a copyright work must be recorded in some material form. But the fixation in the written score or on a record is not in itself the music in which copyright subsists… The test of substantial reproduction is not a note-by-note textual comparison of the scores. It involves listening to and comparing the sounds of the copyright work and of the infringing work. So it is possible to infringe the copyright in a musical work without taking the actual notes.” And that is what the Los Angeles jury decided Williams and Thicke had done in this case. Please contact our Music Partner Alexander Ross if you would like more information.