Whatever your take on the verdict Tuesday that awarded the estate of Marvin Gaye a win in its claim that Robin Thicke and Pharrell Williams plagiarized part of “Blurred Lines” from a song that Gaye copyrighted in 1977, it may be helpful to remember that we aren’t the jury.
We didn’t hear the evidence, nor did we try our best – assuming that’s what jurors do – to follow an instruction from Judge John Kronstadt regarding the law that applies. Thus, imagine that we’re jurors, we’ve heard all the testimony – including Thicke’s serenading us with segments of popular songs – and now the judge instructs us.
At its core, infringement requires a finding of similarity of expression that’s protected by copyright. “Similarity that is confined to ideas and general concepts is not infringing,” Kronstadt explained. “Similarities derived from the use of common ideas are not protected.” He continued.
Trivial copying is not copyright infringement. Copying is trivial if the average audience would not recognize the copying of the Gaye Parties’ work in the Thicke Parties’ work.
You must determine whether any copying of the Gaye Parties’ work in the Thicke Parties’ work is trivial. If the copying is trivial, then the Thicke Parties’ did not infringe the Gaye Parties’ copyright.
Thus, the jurors unanimously found, after hearing the evidence, that “Blurred Lines” bears a similarity to “Got to Give it Up” that is more than an idea or concept.
The “verdict sets a terrible precedent,” according to Adam Pasick at Quartz, who notes that the finding that Thicke and Williams infringed merely by trying to evoke the feeling of Gaye’s song – as lawyers for the duo argued – “could have a chilling effect on musicians trying to create new songs.”
That may be. Yet as Kronstadt instructed jurors, “Intrinsic similarity is shown if an ordinary, reasonable listener would conclude that the total concept and feel of the Gaye Parties’ work and the Thicke Parties’ work are substantially similar.”
Jurors seem to have followed his instruction.
Others have said the court misapplied the law more broadly. “The Gaye estate’s copyright covers only the notes of his song (the composition), and not the way it was played (the sound recording),” writes Tim Wu, a professor of law at Columbia, in The New Yorker.
According to Wu, who notes that Gaye registered a copyright for the composition but not for the recording:
With a broader copyright, Gaye’s estate would have a stronger claim to owning some of his particularly distinctive style choices. But, given that the copyright covers only the notes and Pharrell did not borrow any note sequences, the judge was legally obliged to throw out the case.
That also may be decided on appeal. For now, imagine you are a juror and Kronstadt has charged you as follows.
If the Gaye family showed that is more likely than not that there was a substantial similarity between the songs, then you can presume that Thicke and Pharrell copied.
According to Kronstadt, Thicke and Pharrell could rebut that presumption if they showed that it is more likely than not “that they independently created the infringing work or works.”