Pop singer Robin Thicke’s megahit “Blurred Lines,” featuring Pharrell and T.I., set records in 2013 by spending sixteen weeks as the number one single on Billboard’s Hot R&B/Hip-Hop Songs chart, topping the Billboard Hot 100 chart for twelve weeks, and selling over 5 million downloads in 22 weeks – the fastest of any song in digital music history. The song’s music video was released as two variant editions–one an unrated topless version that was temporarily removed from YouTube less than one week from release for allegedly violating the site’s terms of service relating to the use of nudity in a sexual context. While critical reactions to the song were mostly positive, the song as well as the music video was criticized for trivializing sexual consent and promoting rape culture; not surprisingly, the song has been banned from use at student events at various schools abroad. Thanks to its massive popularity and associated controversy, “Blurred Lines” has captured much public attention, including the attention of the family of Marvin Gaye. They allegedly accused Thicke of using elements of Marvin Gaye’s song, “Got To Give It Up” in “Blurred Lines” and threatened litigation if a monetary settlement were not paid. Does Thicke’s “Blurred Lines” infringe the copyright owner’s rights to Gaye’s “Got To Give It Up” where there was no actual sampling or literal copying of the music and lyrics? Ironically, because of the blurred lines of what constitutes copyright infringement of music, the answer is unclear. In this article, we discuss the issues raised in the suit and thorny issues surrounding the current law in the area of copyright infringement of music.
Pre-Emptive Strike against Gaye’s Family and Bridgeport
After his six-figure settlement offer to Gaye’s family was rejected and after receiving threats from Bridgeport Music Inc. that “Blurred Lines” was similar to Funkadelic’s song “Sexy Ways,” Thicke, along with “Blurred Lines” co-writers Pharrell Williams and Clifford Harris, Jr. (aka T.I.), filed a declaratory judgment action on August 15, 2013 in U.S. District Court for the Central District of California in Los Angeles against Gaye’s family and Bridgeport Music (“Defendants”). The declaratory judgment action requests a ruling that “Blurred Lines” does not infringe on Gaye’s song as well as Funkadelic’s song “Sexy Ways.” The complaint asserts that Defendants alleged that “Blurred Lines” copies their compositions, and further asserts “that there are no similarities between plaintiffs’ composition and those the claimants allege they own, other than commonplace musical elements. Plaintiffs created a hit and did it without copying anyone else’s composition.” The complaint further asserts:
“The basis of the Gaye defendants’ claims is that “Blurred Lines” and “Got To Give It Up” “feel” or “sound” the same. Being reminiscent of a “sound” is not copyright infringement. The intent in producing “Blurred Lines” was to evoke an era. In reality, the Gaye defendants are claiming ownership of an entire genre, as opposed to a specific work, and Bridgeport is claiming the same work.”
The lawsuit also alleged that Gaye’s family does not have a sufficient interest in the copyright to the composition “Got To Give It Up” to confer standing to sue for infringement. As of the writing of this article, no answer was filed by either Gaye’s family or Bridgeport.
Copyright Infringement of Music
Musical expression, unlike other forms of expression such as literary compositions and the visual arts, is experienced by the ear rather than the eye, and while the distinction may appear to be without legal significance, it does have an impact on how the courts approach copyright infringement in music cases. Music cases create a unique challenge for courts deciding on infringement issues in part because of the difficulty in analyzing musical works and applying copyright infringement standards developed primarily for literary works. Furthermore, the particular characteristics of music have a significant role in shaping important issues in copyright infringement cases including access, subconscious copying, independent creation, and use of expert musicologists.
Before delving into what constitutes copyright infringement, it is important to understand what rights are granted by the U.S. copyright laws. Copyright law provides a copyright owner with a bundle of rights in a work – specifically, the exclusive right to reproduce, distribute, perform, display, and license the work, or make derivative works and to authorize others to do any or all of these things. With some exceptions, copyright infringement occurs when any one of these rights is exercised without the copyright owner’s permission.
In order to prove copyright infringement, the plaintiff needs to demonstrate: (a) that it is the owner of a valid copyright, and (b) that protected elements of the copyrighted work were copied by the defendant. Assuming that the plaintiff can demonstrate proper ownership with the copyright registration, the plaintiff must then prove that the defendant copied the work with either direct or circumstantial evidence. For example, direct evidence would be an admission by the defendant or witnesses to the defendant’s actual act of copying or sampling the copyrighted song. However, direct evidence is rarely available and circumstantial evidence is usually presented, especially in music copyright infringement cases.
To prove copying with circumstantial evidence, the plaintiff needs to demonstrate: (a) access to the copyrighted work and (b) substantial similarity between the allegedly infringing work and the copyrighted work. Access to the copyrighted work may be shown by demonstrating that the defendant had actual knowledge of the plaintiff’s work or had a “reasonable opportunity” to access the plaintiff’s work. The plaintiff may establish access with circumstantial evidence by showing that a chain of events allowed the defendant to have direct access to the plaintiff’s work (i.e., through record company dealings). Likewise, the plaintiff may demonstrate with indirect evidence that the defendant had a “reasonable opportunity” to access the work due to widespread public dissemination of the plaintiff’s work.
For cases involving musical compositions, a plaintiff may have more success proving access through widespread dissemination of its work by presenting evidence such as record sales or radio performances. Evidence that the plaintiff’s work was widely distributed may also support a theory of subconscious infringement.
Alternatively, access may be inferred without specific evidence if the plaintiff can show that the two works are “strikingly similar.” A court will infer access if the plaintiff can demonstrate that the similarities are only achievable through copying, and not by coincidence, independent creation, or use of a prior common source, which are defenses to copyright infringement.
Courts in the Ninth Circuit have applied an “Inverse Ratio” rule with respect to circumstantial evidence. That is, the more access the defendant had to the copyrighted work, the less similarity must be shown to prove copying has occurred. The Ninth Circuit has also clarified that a court does not need to apply a “substantially similar” analysis when there is direct evidence that the defendant duplicated the plaintiff’s entire work.
The inquiry into whether two musical works are substantially similar depends on the facts of each case. The Circuits have developed varying tests for substantial similarity of two works, some of which depend on the type of copyrighted work at issue. Since Thicke’s case was filed in the Central District of California, the Ninth’s Circuit’s standard for copyright infringement applies.
In determining whether two musical works are substantially similar, the Ninth Circuit employs a two part analysis: (1) an objective “extrinsic” test, and (2) a subjective “intrinsic” test. The extrinsic test is applied by the judge, and assesses whether two musical works contain similar ideas and expression as determined by objective factors. The extrinsic test typically relies on testimony from a musicologist expert to establish substantial similarity. The expert must dissect the two works into elements and compare those elements to determine whether the defendant’s work is substantially similar to the copyrighted work. If substantial similarity of ideas is found under the extrinsic test, summary judgment is precluded and the jury applies the intrinsic test whereby the works are examined through the lens of an ordinary lay observer without analytic dissection or use of expert testimony.
While many courts have identified criteria for analyzing a musical composition, the Ninth Circuit has never announced a set of criteria under the extrinsic test since “a musical composition can be comprised of a number of otherwise unprotectable elements, including lyrics, rhythm, pitch, cadence, melody, harmony, tempo, phrasing, structure, chord progression, instrumental figures, and others.” Without expressly delineating the extrinsic elements of musical works, the Ninth Circuit acknowledged that it would be difficult for the lower courts to apply the extrinsic test:
“We recognize the difficulties faced by the district court in this case. We have referred to “the turbid waters of the ‘extrinsic test’ for substantial similarity under the Copyright Act.”…The application of the extrinsic test, which assesses substantial similarity of ideas and expression, to musical compositions is a somewhat unnatural task, guided by relatively little precedent.”
Since copyrights protect an artist’s expression of ideas, but not the ideas themselves, the copyright covering Gaye’s song would not protect those portions of the song that are common; it protects only those parts of the song that are original to Gaye. Since the requirement is one of substantial similarity to protected elements of the copyrighted work, the trier of fact must first distinguish between the protected original, expressive elements and unprotected commonplace material in the copyrighted work. Once these specific protected elements in Gaye’s song have been identified, the trier of fact must then determine whether “Blurred Lines” substantially appropriated these protected elements of Gaye’s song such that the works are substantially similar. Since this is an issue of fact and one that is not easy to assess, demonstrating substantial similarity will likely be the most disputed issue in this case.
Based on statements in their complaint that “[t]here are no similarities between [“Blurred Lines”] and [“Got To Give It Up”], other than commonplace musical elements,” Thicke, Willliams, and Harris will likely argue that the use of a high falsetto voice, vocal and musical layering, and beat are common unprotected elements, that “Blurred Lines” was intended to be a tribute to an era, and that being reminiscent of a “sound” is not copyright infringement.
Did the inspiration for “Blurred Lines” rise to the level of copyright infringement?
Thicke admitted during a GQ interview that “Got to Give It Up” was one of his favorite songs and that it was the source of inspiration for “Blurred Lines.” In fact, the first line of the complaint expresses respect for Gaye’s and Funkadelic’s music. Courts in the Ninth Circuit may consider such an admission as evidence of Thicke’s access to Gaye’s music. Though Thicke stated that his intent with “Blurred Lines” was to evoke an era, Thicke may have subconsciously copied Gaye’s song. Defendants have been found strictly liable for copyright infringement even if the copying was unintended and performed subconsciously.
While there are audible similarities between “Blurred Lines” and “Got to Give It Up,” the question is whether these elements are protectable elements of Gaye’s song and if so, whether these protectable elements were appropriated in “Blurred Lines” such that the works are substantially similar. Case law supports that appropriation of even a few notes from a copyrighted song may be enough to establish copyright infringement. Since few copyright cases actually go to trial and fewer cases generate published judicial opinions – no doubt due in part to the blurred legal lines and subjective nature of copyright law as applied to music – it is very likely that this case will be settled. A quick settlement, however, in this case and others like it will avoid addressing a bigger issue – namely, to what extent can artists create new works from their influences without being sued. Did Thicke successfully recreate a vibe of the 1970’s without infringing Gaye’s work or did he cross the line with “Blurred Lines”? If this case settles, the answer will remain blurry.
© 2013 McDonnell Boehnen Hulbert & Berghoff LLP
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 See Rauly Ramirez, Robin Thicke’s ‘Blurred Lines’ Breaks Record Atop Hot R&B/Hip-Hop Songs, Billboard.com (Sept. 25, 2013; 5:24 PM), http://www.billboard.com/articles/columns/the-juice/5733206/robin-thickes-blurred-lines-breaks-record-atop-hot-rbhip-hop; Gary Trust, Robin Thicke’s ‘Blurred Lines’ is Billboard’s Song of the Summer, Billboard.com (Sept. 5, 2013; 10:10 AM), http://www.billboard.com/articles/news/5687036/robin-thickes-blurred-lines-is-billboards-song-of-the-summer.
 See ‘Blurred Lines’ Banned by YouTube As Robin Thicke’s Video Features Nude Models, HuffingtonPost.com (April 1, 2013; 5:17 PM), http://www.huffingtonpost.com/2013/04/01/blurred-lines-banned-by-youtube-robin-thicke-nude-models_n_2994676.html.
 See Abby Young-Powell & Libby Page, Universities Ban Blurred Lines on Campuses Around UK, The Guardian (Sept. 20, 2013), http://www.theguardian.com/education/2013/sep/20/robin-thicke-blurred-lines-ban.
Interestingly, the Gaye Family declined to accept Thicke’s six-figure settlement offer. See Alex Pharm, Marvin Gaye’s Family Rejected Robin Thicke’s Six-Figure Offer, Billboard.com (Aug. 23 2013; 10:30 AM), http://www.billboard.com/articles/news/5672505/marvin-gayes-family-rejected-robin-thickes-six-figure-offer.
 Bridgeport Music Inc. is the owner of Funkadelic’s compositions including “Sexy Ways.”
 Complaint for Declaratory Relief, Williams v. Bridgeport Music, Inc., No. 13-06004 (C.D. Cal. Aug. 15, 2013) [hereinafter “Complaint”].
 Id. at ¶¶ 15, 20.
 Id. at ¶ 1.
 Id. at ¶ 2.
 Id. at ¶ 22.
 According to the “Waiver of Service of Summons” filed on September 30, 2013, Defendants had 60 days from August 30, 2013 to respond to the complaint.
 See Margit Livingston & Joseph Urbinato, Copyright Infringement of Music: Determining Whether What Sounds Alike is Alike, 15 Vand. J. Ent. & Tech. L. 227, 230 (2013).
 See Wihtol v. Wells, 231 F.2d 550, 552 (7th Cir. 1956) (“Of all the arts, music is perhaps the least tangible.”); see also, Livingston & Urbinato, supra note 12.
 See Livingston & Urbinato, supra note 12 (discussing the challenges in musical copyright infringement cases).
 See 17 U.S.C. § 106 (2012).
 Id. at § 501.
 See Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991).
 See Straughter v. Raymond, No. CV 08-2170 CAS, 2011 WL 3651350, at *8 (C.D. Cal. Aug. 19, 2011).
 See, e.g., ABKCO Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d 988, 998 (2d Cir. 1983) (affirming the district court’s finding that George Harrison infringed on the musical copyright of “He’s So Fine,” in part because “[e]ven Harrison conceded at trial that the two songs were ‘strikingly similar’ as played by a pianist during the liability trial”).
 See Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir. 2000) (“Proof of copyright infringement is often highly circumstantial, particularly in cases involving music.”); Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir. 1996) (“[D]irect evidence of copying is not available in most cases.”).
 See Swirsky v. Carey, 376 F.3d 841, 844 (9th Cir. 2004).
 See Jason v. Fonda, 526 F. Supp. 774, 776 (C.D. Cal. 1981), aff’d, 698 F.2d 966 (9th Cir. 1982).
 See, e.g. Moore v. Columbia Pictures Indus., Inc., 972 F.2d 939, 942 (8th Cir. 1992) (explaining that a reasonable possibility of access may be shown for an employee of a corporation that composed the defendant’s music when another employee had actual possession of the plaintiff’s work due to the physical proximity of the employees); but see Dimmie v. Carey, 88 F. Supp. 2d 142, 148 (S.D.N.Y. 2000) (finding, in part, that a strict corporate policy “of refusing to review unsolicited recording” precluded a finding that defendants, employees of a record company, had access to the plaintiff’s work when the plaintiff mailed her copyrighted recording to the record company).
 See Three Boys Music Corp., 212 F.3d at 482.
 See, e.g., Acuff-Rose Music, Inc. v. Jostens, Inc., 988 F. Supp. 289, 293 (S.D.N.Y. 1997), aff’d, 155 F.3d 140 (2d Cir. 1998) (finding a reasonable opportunity of access by the defendant due to evidence that the plaintiff’s song was ranked as a top five country hit at the time the defendant composed the song, showing that the defendant had “ample opportunity” to view the plaintiff’s lyrics).
 See Three Boys Music Corp., 212 F.3d at 483; see also Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177, 180-81 (S.D.N.Y. 1976) (finding that George Harrison in composing “My Sweet Lord” subconsciously infringed on the song “He’s So Fine,” recorded by the Chiffons); Cholvin v. B. & F. Music Co., 253 F.2d 102, 103-04 (7th Cir. 1958) (finding that the circumstantial evidence presented by the plaintiff, which included over 200,000 records sold and frequent radio broadcasting of the song for a period of five to six years, combined with similarities between the compositions, warranted an inference of copyright infringement).
 Baxter v. MCA, Inc., 812 F.2d 421, 423 (9th Cir. 1987) (“Absent evidence of access, a ‘striking similarity’ between the works may give rise to a permissible inference of copying.”); see also Selle v. Gibb, 741 F.2d 896, 900, 905 (7th Cir. 1984) (finding that Selle, a composer of a copyrighted song “Let It End,” did not sufficiently prove striking similarity to the Bee Gees’ hit song “How Deep Is Your Love” to permit a presumption of access by the Bee Gees, and finding that the Bee Gees demonstrated independent creation).
 See Selle, 741 F.2d at 901.
 See Straughter v. Raymond, CV 08-2170 CAS CWX, 2011 WL 3651350, at *13 (C.D. Cal. Aug. 19, 2011).
 Id. at *13.
 See Range Road Music, Inc. v. East Coast Foods, Inc., 668 F.3d 1148, 1154 (9th Cir. 2012).
 Straughter, 2011 WL 3651350, at *13.
 See Sergui Gherman, Harmony and its Functionality: A Gloss on the Substantial Similarity Test in Music Copyrights, 19 Ford. Intell. Prop., Media & Ent. L.J. 483, 486-88 (2009) (discussing variations of the substantially similar test among circuits).
 Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir. 2004).
 Three Boys Music Corp. v. Bolton, 212 F.3d 477, 485 (9th Cir. 2000).
 See Swirsky, 376 F.3d at 845.
 See Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir. 1996) (“[T]he subjective ‘intrinsic test’ asks whether an ‘ordinary, reasonable observer’ would find a substantial similarity of expression of the shared idea.”).
 Straughter, 2011 WL 3651350, at *13.
 See Swirsky, 376 F.3d at 848 (internal citations omitted).
 Id. at 845 (“Because the requirement is one of substantial similarity to protected elements of the copyrighted work, it is essential to distinguish between the protected and unprotected material in a plaintiff’s work.”) (emphasis in original).
 Complaint at ¶ 1 (emphasis added).
 Id. at ¶ 2.
 See Stelios Phili, Robin Thicke on That Banned Video, Collaborating with 2 Chainz and Kendrick Lamar, and His New Film, GQ.com (May 7, 2013; 1:20 AM), http://www.gq.com/blogs/the-feed/2013/05/robin-thicke-interview-blurred-lines-music-video-collaborating-with-2-chainz-and-kendrick-lamar-mercy.html.
 See Complaint at ¶ 1 (“Plaintiffs, who have the utmost respect and admiration of Marvin Gaye, Funkadelic and their musical legacies, reluctantly file this action in the face of multiple adverse claims….”).
 Three Boys Music Corp. v. Bolton, 212 F.3d 477, 484 (9th Cir. 2000) (in upholding the district court’s finding of Bolton’s subconscious copying due to the Isley Brother’s widely disseminated music, noted that “Bolton confessed to being a huge fan of the Isley Brothers and a collector of their music.”).
 See supra note 26 and accompanying text, discussing the George Harrison copyright infringement case.
 For example, Thicke’s use of high falsetto voice in “Blurred Lines” is reminiscent of Gaye’s in “Got To Give It Up.”
 Baxter v. MCA, Inc., 812 F.2d 421, 425 (9th Cir. 1987) (“Even if a copied portion be relatively small in proportion to the entire work, if qualitatively important, the finder of fact may properly find substantial similarity.”); Elsmere Music, Inc. v. Nat’l Broad. Co., Inc., 482 F. Supp. 741, 744 (S.D.N.Y. 1980), aff’d sub nom, 623 F.2d 252 (2d Cir. 1980) (finding that copying four notes, which were considered a significant part of the musical composition, was “capable of rising to the level of copyright infringement”). Justin Bieber and Usher Raymond IV (“Usher”) were sued by Devin Copeland (“De Rico”) in May 2013 for allegedly copying De Rico’s “Somebody to Love,” in part because Bieber’s version (also titled, “Somebody to Love”) used the same five-word hook. See Complaint, Copeland v. Bieber, No. 13-00246, at ¶ 47 (E.D. Va. May 2, 2013).
 Swirsky v. Carey, 376 F.3d 841, 848 (9th Cir. 2004) (noting the lack of existing court precedent to guide analysis of substantial similarity in musical composition cases).