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One year ago, the world was grooving to “Blurred Lines” when the song of the summer prompted a courtroom battle now destined to make its mark in the annals of music history.
Producer Pharrell Williams and singer Robin Thicke filed a lawsuit against the family of Marvin Gaye that sought a declaration that the hit wasn’t an infringement of Gaye’s “Got to Give It Up.” In response, Frankie Gaye and Nona Gaye brought counterclaims that alleged Thicke’s “Marvin Gaye fixation” had led to the misappropriation of two songs.
Since then, the respective sides have examined reports from musicologists, given depositions and fought over access to evidence. Now, it’s come time for Williams’ camp to tell a judge why the issues in the case are so indisputable that the creators of “Blurred Lines” should be given a victory without any jury trial.
“The only reason Defendants claim infringement here is because Plaintiffs made certain comments in promoting their record about being inspired by Marvin Gaye,” states a motion for summary judgment filed this week. “Defendants smelled money and rushed to make their infringement demand, but they chose to ignore that the songs had no similarity in actual notes or phrases.”
Adjudicating similarity in songcraft can be a complicated matter, but the latest motion filed by attorney Howard King attempts a rather smart legal gambit by addressing the difference between a song composition and a song recording. The law confers copyrights on each, and here the plaintiffs say that the Gayes own only the composition to “Got to Give it Up,” not the recording, which presumably is owned by Gaye’s record label.
As such, the judge is being asked to determine similarity without reference to the Gaye song recording.
“Musical elements of GIVE that are not contained in the composition — such as the ‘groove’ of the sound recording, the sounds of the instruments, or other recording or performance elements (e.g., falsetto singing, party noise) — simply have no bearing on the infringement claim here,” argues the summary judgment motion.
There are supposedly eight “similarities” identified between “Blurred Lines” and “Got to Give it Up,” but the plaintiffs shrug them off as “unprotectable, commonplace ideas,” like the use of a cowbell, repeating a note in a melody, and backup vocals that don’t use the same harmony or rhythm. To support this proposition, the plaintiffs nod to other songs, including War’s “Low Rider,” Curtis Mayfield‘s “Superfly” and Lipps Inc.’s “Funkytown.”
Other noted “similarities” between the songs are allegedly not in the copyright deposit on the sheet music. “It is telling (and fatal to the claim) that a majority of the material that Defendants base their infringement claim on is material that Marvin Gaye did not bother to attempt to copyright,” say the plaintiffs. “The omitted material is not original or protectable. Marvin Gaye apparently agreed.”
Williams’ camp is dismissive of a musicology report offered by the defendants, saying that it doesn’t even go so far as to identify the two songs as each having two consecutive notes with the same pitch and duration and placement. “This is highly unusual in an infringement claim,” the summary judgment motion scoffs. It’s added that Gaye’s song has a bluesy sound thanks to its use of minor chords while Thicke’s song has a harmony that’s expressed with major chords.
The fact that Gaye’s music publisher at EMI refused to file claims is certainly noted. “The publisher was right,” say the plaintiffs. (The Gaye family previously went after EMI for its failure to administer claims and alleged a possible motivation in that the publisher enjoys a business relationship with Williams. The Gaye family’s claims against EMI have since been settled.)
The full summary judgment motion (which can be read here) provides further deconstruction of the two songs and features numerous examples of highlighted sheet music to make the case that the claims of similarity don’t fly.
We expect the Gayes’ lawyer, Richard Busch, to be filing opposition papers soon. THR will provide coverage when those are made available.
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