“Blurred Lines” Case: Williams v. Bridgeport Music Inc.
Barry F. Irwin, P.C. Vice President, Lawyers for the Creative Arts Overview
• Background of Artists and Works at Issue • Litigation Timeline • Key Legal Issues Addressed • Scope of Copyright • Substantial Similarity Analysis • Exclusions of evidence • Jury’s Findings • Post-trial Determinations
7/8/2015 Barry F. Irwin, P.C. 2 Background of Artists and Works At Issue Marvin Gaye
• “Prince of Soul” • By the age of 44, had 12 #1 hits, 18 Top-10 hits, 41 Top-40 hits, including: • “I Heard it Through the Grapevine” • “What’s Going On” • “Let’s Get it On” • “Sexual Healing” • Grammy Award winner • Rock and Roll Hall of Fame inductee
7/8/2015 Barry F. Irwin, P.C. 4 Got to Give it Up
• Composed and recorded in 1976 • Reached #1 on three charts • Registered with the US Copyright Office in 1977 by Jobete Music Company • Lead sheet deposited with the USCO prepared by unknown person
7/8/2015 Barry F. Irwin, P.C. 5 Pharrell Williams & Robin Thicke Williams • Composer, performer, producer since early 1990s • Written and produced for artists such as Britney Spears, Jay-Z, … • Released several group and solo studio albums
Thicke • Composer, performer, and publisher since mid 1990s • Has released 7 studio albums and numerous singles
7/8/2015 Barry F. Irwin, P.C. 6 Blurred Lines
• Released in March 2013 as a single, and on Blurred Lines album in July 2013 • #1 in over 114 countries • Sextuple platinum (6M) by Sept. 2013 • 16 weeks at #1 on Billboard’s Hot R&B/Hip-Songs chart, a new record • Video has had almost 400 million Youtube views
7/8/2015 Barry F. Irwin, P.C. 7 Litigation Timeline Litigation Timeline
March, July 2013: “Blurred Lines” single, album released
August 15, 2013: DJ action filed by Thicke Parties
October 30, 2013: Infringement counterclaims filed by Gayes
October 30, 2014: Summary judgment motion denied
January 26, 2015: Final pretrial conference, MIL rulings
February 24 – March 10, 2015: Jury Trial
7/8/2015 Barry F. Irwin, P.C. 9 Key Legal Issues Addressed Legal Issues Overview
• Scope of the Copyright • Did the copyright encompass the entire composition as reflected in the sound recording, or just those aspects reflected in the lead sheets • Substantial Similarity Analysis • Was Blurred Lines substantially similar to the protected composition • Exclusions of evidence • What evidence and arguments could and could not be considered
7/8/2015 Barry F. Irwin, P.C. 11 Scope of Copyright Scope of Copyright
• To obtain a copyright in a musical work prior to 1978, the author had to: 1. Publish it with proper copyright notice …, and then later register [the composition], or 2. If not published, submit a copyright application with a deposit copy • The Court suggested that had there been a publication of the composition that was more fulsome than what was found in the lead sheets, the scope of the copyright may have extended to that more fulsome publication • Court found distribution of sound recording was not a publication of the composition, because distribution of sound recordings before 1978 “[do] not … constitute publication of the musical work.” 17 U.S.C. § 303(b) (1997 amendment to 1976 Copyright Act effective retroactively) • So, because no evidence of other publication, prong 1 did not apply and under prong 2 the scope of copyright protection limited to the deposit copy. 7/8/2015 Barry F. Irwin, P.C. 13 Significance of Lead Sheet Limitation
• The deposited lead sheets lacked certain elements: • Percussion lines • backup vocals • Parties debated whether other elements were in lead sheets: • bass lines: first 8 bars included, then “simile” • keyboard lines: chord changes indicated
7/8/2015 Barry F. Irwin, P.C. 14 Substantial Similarity Analysis Initial “Constellation” of Alleged Similarities
1. Signature phrases 2. Hooks 3. Hooks sung with backup vocals 4. Theme X 5. Backup hooks 6. Bass lines 7. Keyboard parts 8. Percussion parts Additional Similarities
(Noted in italics: those elements ruled as not present in the deposit copy) From Preliminary Report of Judith Finell, Dkt 14, beginning at p. 47 7/8/2015 Barry F. Irwin, P.C. 16 Similarity #1 – Signature phrase
“Got to Give it Up”: “Blurred Lines”:
I used to go out to parties And that’s why I’m gon’ take a good girl
7/8/2015 Barry F. Irwin, P.C. 17 Similarity #1 – Signature phrase
Shared elements: • Repeat starting tone several times • Followed by tones with an identical scale degree sequence 5-6-1 followed by 1-5 • Identical rhythms for the first six tones • Melodic “tail”, melisma, on last lyric beginning with scale degrees 1-5 • Similar melodic contours, rising/lowering
7/8/2015 Barry F. Irwin, P.C. 18 Similarity #2 – Hooks
“Got to Give it Up”: “Blurred Lines”:
Keep on dancin’ Take a good girl
7/8/2015 Barry F. Irwin, P.C. 19 Similarity #2 – Hooks
• Repeated throughout each song • Initially identical scale degrees (except on third note): 6-1--1 • Rhythm
7/8/2015 Barry F. Irwin, P.C. 20 Significance of Similarities 1 and 2
• Appropriation of signature phrase – “I Used to Go Out to Parties” – was allegedly critical because virtually all of Got To Give It Up developed from its signature phrase • Similarity of hooks was compounded by the fact that there were numerous variations of the Blurred Lines hook – “Take a Good Girl – (with each variation taking at least two defining features of the hook)
7/8/2015 Barry F. Irwin, P.C. 21 Similarity #3 – Hooks with backup vocals
• Backup vocals sung simultaneously with main vocal melodies • Highlighting key words in both hooks • Identical scale degrees: 6-1-6- 1/5
7/8/2015 Barry F. Irwin, P.C. 22 Similarity #4 – Theme X
• Theme X is basically a note pattern • Mid-point descent, followed by a half-step ascent (“chromatic feature”) • Scale degree (3-3-#2-3)(SJ), or similar scale degree (5-5-#4-5)(full report) • This theme was allegedly “core material” for Blurred Lines
7/8/2015 Barry F. Irwin, P.C. 23 Similarity #4 – Theme X
“Got to Give it Up”: “Blurred Lines”:
Dancin’ lady, … 1. If you can’t hear 2. If you can’t read 3. Okay now he was close 4. But you’re an animal 5. And that’s why I’m 6. But you’re a good girl 7. ....
7/8/2015 Barry F. Irwin, P.C. 24 Similarity #5 – Backup hooks
“Got to Give it Up”: “Blurred Lines”:
Dancin’ lady Hey, hey, hey
7/8/2015 Barry F. Irwin, P.C. 25 Similarity #5 – Backup hooks
• Chromatic half step sequences • Repeated over 20 times
7/8/2015 Barry F. Irwin, P.C. 26 Similarity #6 – Bass Melodies
• Similar rhythm and scale degrees • Location: instrumental intro, repeated throughout • Ascending leap: 1-4 • Around :20 in “Give”, :05 in “Blurred” • Descending melody: 5 – 1 • Occurs at end of section to herald a new one • Always occurs with keyboard parts
7/8/2015 Barry F. Irwin, P.C. 27 Similarity #7 – Keyboard parts
• Similar chords emphasizing off beats • Staccato articulation • Shared pitches • Silent on the 4th beat
7/8/2015 Barry F. Irwin, P.C. 28 Similarity #8 – Percussion lines
• Cowbell • Syncopated rhythms played by cowbell • Shared deviation from standard drums instrumentation • “indispensable feature in both songs identity” • Open hi-hat • Plays on second ½ of beat 4 in both songs • On the weakest beat of the bar, creating a “splash” • “crucial to the character of both songs”
7/8/2015 Barry F. Irwin, P.C. 29 Additional similarities
• Distinctive falsetto in vocals • Omission of guitar which deviated from norm • Party noises Added in the 10/31/14 “Full Report”: • Shared musical “fingerprint” • “Woo” in GTGIU (twice) and repeated throughout BL on 2nd half of beat 3 • Hand clap rhythms • Lyrics • Story line (transforming to confident dancer; seducing a woman) • Sexual phrases • Up, round, shake, down • Parlando/rap section, both from bars 73-88 • Question/answer structure
7/8/2015 Barry F. Irwin, P.C. 30 Summary of Main Similarities
• Lyrics • “Signature Phrases,” “hooks” and “back-up hooks” share scale degree, rhythm and tone • Instrumentation • Lower, slower bass lines • Keyboard parts • Only 2 different chords, repeated throughout • Parlando/rap section
7/8/2015 Barry F. Irwin, P.C. 31 Exclusions of Evidence Thicke Parties Successful MILs
• Evidence or argument that Gaye’s fame contributed to song’s success • However, statements of Thicke and other parties as to creation and promotion of “Blurred Lines” were allowed • Third party statements regarding the similarity of the two songs • Excluded as inadmissible lay opinions • Evidence of Robin Thicke’s touring income • Proffered expert, Gary Cohen, did not sufficiently identify portion of the income attributable to “Blurred Lines”
7/8/2015 Barry F. Irwin, P.C. 33 Gayes Parties Successful MILs
• Evidence of consultation with Lawrence Ferrara • Retained by the Gayes as an expert consultant in anticipation of litigation, but not to testify at trial • EMI’s Refusal • EMI’s assertions of noninfringement and refusal to pursue claims • Peter Oxendale’s noninfringement opinion • Bruce Scavuzzo • Executive of EMI who would testify regarding EMI’s reasons for not pursuing claims and the Oxendale report
7/8/2015 Barry F. Irwin, P.C. 34 Jury’s Findings Verdict
7/8/2015 Barry F. Irwin, P.C. 36 Verdict
7/8/2015 Barry F. Irwin, P.C. 37 Statements After Blurred Lines Release
• Thicke, May 7, 2013 to GQ: “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.’” • Williams, March 2013, to XXL: “… I was trying to pretend that I was Marvin Gaye and what he would do…” • Weinger, email to UMG executives: Blurred Lines is “utterly based on” Give it Up, that it “copied / sampled” it
7/8/2015 Barry F. Irwin, P.C. 38 Subsequent Statements
• Williams, in his deposition: Q: “Did Marvin Gaye’s ‘Got to Give it Up’ ever cross your mind at all at any time while you were creating ‘Blurred Lines’”? A: “No.” • Williams, in his trial testimony: He only realized “after the fact” that he was “picturing himself as Marvin Gaye” when creating “Blurred Lines” • Thicke, in his deposition: All of his public statements were untrue, and he only mentioned Marvin Gaye to sell records • Thicke, in his trial testimony: He only realized he wasn’t in the studio and didn’t tell Williams anything when Williams said so in his deposition, a “light bulb went on”
7/8/2015 Barry F. Irwin, P.C. 39 Closing Argument – Credibility
• Thicke • Drew connection with “Give it Up” in interviews promoting “Blurred Lines” • Then changed his sworn testimony in the case: that he wasn’t there when it was created and he didn’t tell Williams anything • According to him, only said it to get credit and sell records • Williams • Said he took the feeling of “Give it Up” and Marvin Gaye • But switched to saying it never crossed his mind, that he only realized it “after the fact” • Parlando and rap sections start on the same bar “randomly”
7/8/2015 Barry F. Irwin, P.C. 40 Closing Argument – Credibility
• Wilbur (Thicke Parties’ expert) • Testified contrarily in other cases: that a lead sheet is a “less fleshed-out version of a chord pattern” in a musical composition • She played keyboard rhythms in her re-creation of “Give it Up,” while also claiming keyboard parts not contained in lead sheets • When trying to convince the jury there was no substantial similarity, stopped playing bass in the middle: “[she] did not feel it worked” • Lied about working as a copyist
7/8/2015 Barry F. Irwin, P.C. 41 Closing Argument
“I guess at the end of the day it boils down to this: Who do you believe? That’s what it boils down to.” -Richard S. Busch, attorney for the Gayes
7/8/2015 Barry F. Irwin, P.C. 42 Post-trial Determinations Post-trial Determinations
• Hearing held June 29th, Court announced views on motions • Tentatively denied: • Thicke - JMOL, new trial, and remittitur of profit award against Thicke • Gayes - injunction • Tentatively granted: • Thicke - remittitur of profit award against Williams to 40-100% • Gayes - declaration that all plaintiffs, not just Thicke and Williams, are directly liable for infringement; ongoing royalty of 50%; and prejudgment interest Thanks! Barry F. Irwin Chris De Lillo – primary drafter extraordinaire Irwin IP [email protected]