As you may remember from a couple years ago, Robin Thicke and Pharrell Williams have found themselves in a bit of trouble over their (admittedly, quite catchy) song, Blurred Lines. Back in 2013, Thicke and Williams filed a lawsuit asking a federal district court in California to declare that their work was not a copy of Got to Give It Up, despite some similarities. This backfired on them, however, and a jury in 2015 decided that they had, in fact, copied Gaye’s work. So, Thicke and Williams appealed the decision to the 9th Circuit, and that court has now weighed in on the matter — and it’s not good for the duo.
The 9th Circuit held that there is not a clear reason to overturn the jury’s decision in this case, and accordingly affirmed most of the decision below. This has led some commentators — including a dissent from one of the judges who heard the case — to say that this decision sets “a dangerous precedent” (see Nguyen, dissent, pg. 57). The issue is that, in upholding the lower court, the 9th Circuit seems to have said that someone can copyright the “feel” of a song. That is, even though Blurred Lines and Got to Give It Up may not be quite the same, they evoke the same thing when you listen to them, and that is a copyright violation. Can you copy a song’s “feel”? That seems strange — and certainly contrary to what we normally think of as copyrightable — but maybe you can, now. And that could be very problematic, for sure.
Nevertheless, I think the worry is a bit overblown. In its decision, the 9th Circuit seems to go out of its way to say that we should understand its holding to be narrow. That is, this decision should only pertain to this case and this set of facts. Moreover, Thicke was particularly harmful to his own case. In a GQ article from 2013, he essentially admitted to copying Marvin Gaye’s song. In response to a question about the origin of Blurred Lines, Thicke said: “Pharrell and I were in the studio and I told him that one of my favorite songs of all time was Marvin Gaye’s ‘Got to Give It Up.’ I was like, ‘Damn, we should make something like that, something with that groove.'” Then, later in a deposition, he said he was high on Vicodin and drunk for every interview he gave about the song. Ultimately, I’d bet that a jury might have come to a different decision if he was a more sympathetic party in the case.
Still, we will have to watch to see if there is any fallout from this decision. Meanwhile, I’ll go back to listening to my favorite song that also “feels” a lot like Got to Give It Up, Word Crimes, by the truly inimitable Weird Al Yankovic.