APRIL 2018 ENTERTAINMENT, MEDIA & SPORTS >> ALERT THE NINTH CIRCUIT’S “BLURRED LINES” DECISION: WHAT ADVERTISERS SHOULD KNOW In a much-anticipated decision, the Ninth Circuit Court of Appeals declined to overturn a 2015 jury verdict that Robin Thicke and Pharrell Williams’ hit “Blurred Lines” infringed on Marvin Gaye’s “Got To Give It Up.” Even a casual comparison of the respective works reveals stylistic similarities, such as instrumentation, drum beat and the prominent use of falsetto, which traditionally have been considered unprotectable expression under copyright law. And while the combination of unprotectable elements may, as a whole, constitute protectable expression, many music copyright experts and music industry commentators were indeed surprised with the Ninth Circuit’s decision, which in essence espoused the notion that merely evoking the overall “feel” or “style” of an earlier musical work may result in copyright infringement.

REACHING A DECISION It is important to first clarify that the THE BOTTOM LINE Ninth Circuit’s decision was not a The Ninth Circuit’s decision in the “Blurred Lines” case raises more uncertainty in the substantive analysis of the original area of music copyright law. While many experts still maintain that “style” and copyright claims that “Blurred Lines” “groove” are not protectable by copyright, the Ninth Circuit’s decision to uphold the infringed “Got To Give It Up.” Due to 2015 jury verdict establishes that a combination of “stylistic” genre elements can be longstanding precedent that gives protectable and therefore can form the basis of a copyright infringement claim. In great deference to jury decisions, light of this decision, and in anticipation of an uptick in copyright infringement unless there is a clear absence of any litigation, advertisers should be especially cautious when commissioning original reasonable justification, the appeals music based on or inspired by an underlying genre or style. court’s job is solely to determine whether the original case was properly conducted. The Ninth Circuit, the court erred in refusing to rule in basic tenet of copyright law: “Ideas” therefore, largely avoided any analysis favor of Pharrell and Thicke as a matter (e.g., a particular musical style) are not of the underlying copyright claim and of law. Like many experts and protectable; what is protectable is the instead focused on procedural issues, commentators, Nguyen is of the expression of an idea (e.g., the melody such as the validity of the lower court’s opinion that the only objective that may be composed in a particular jury instructions and admissibility of substantial similarities between each musical style). expert testimony. song relate to unprotectable Nevertheless, in a 2-1 decision, the That does not mean that the decision “commonplace elements that are firmly majority declined to overturn the jury’s was reached free of impassioned rooted in the genre’s tradition.” In other original decision, deciding that the disagreement. In a lengthy dissent, words, putting aside similarities in expert testimony given in the jury trial Judge Nguyen argued in part that protectable elements, such as melody created genuine issues of fact that because “Blurred Lines” and “Got To or lyrics, a musical “style” alone cannot were for the jury alone to weigh and Give It Up” are “not objectively similar,” be protected and, therefore, cannot be decide, and that the appeals court infringed. This notion squares with a >> continues on next page Attorney Advertising 2549 APRIL 2018

ENTERTAINMENT, MEDIA & SPORTS >> ALERT

would not second guess them. The In advertising, there has always been majority declined to allow the appeals risk when commissioning original FOR MORE INFORMATION court to act as “judge, jury and music inspired by a certain source, in Howard R. Weingrad executioner” when a jury had at least a terms of avoiding copying pre-existing Partner reasonable basis for their decision. protectable elements such as 212.468.4829 [email protected] melodies, hooks, bass lines, lyrics and COPYRIGHT PROTECTION FOR the like. With the “Blurred Lines” Truan Savage “STYLE” Associate decision offering potentially broader 212.468.4956 By declining to overturn a jury decision protection for existing works, [email protected] involving two songs whose respective advertisers must now tread more or the D&G attorney with whom you melodies and harmonies were not carefully when emulating stylistic have regular contact. objectively similar, the Ninth Circuit’s elements that make up the overall decision makes one thing clear: the “sound” or “feel” of a particular song, threshold for what musical expression such as drum beats, instrumentations Davis & Gilbert LLP 212.468.4800 warrants copyright protection has and other genre-specific stock 1740 Broadway, New York, NY 10019 moved towards protection for elements. Because the jury in the 2015 www.dglaw.com underlying styles and grooves. The rest decision did not explain why they © 2018 Davis & Gilbert LLP is, well, blurry. For example, the Ninth thought “Blurred Lines” and “Got To Circuit’s decision raises the question of Give It Up” were substantially similar, what combination of stylistic elements and because the Ninth Circuit decision is protectable and which are not? does not delve into any substantive When is it permissible to recreate a justification of that decision, it is distinct “groove”? When does homage unclear what combination of elements to traditions of a particular genre pushed “Blurred Lines” over the line. become theft? These questions will We do know that the experts in have to be fleshed out in the coming support of the Marvin Gaye estate years, but courts are already seeing an cited non-identical themes and bass increase of music infringement claims, lines, as well as the combination of and music producers and composers keyboard rhythms, drum patterns and should carefully consider these vocal styles. potential risks when incorporating underlying styles and grooves in their works.