Sony/ATV-owned record label EMI has settled its way out of a copyright conundrum over the song Blurred Lines, a case that pitted their artists Marvin Gaye and Robin Thicke against each other.
The undisclosed settlement ends a lawsuit that Nona Varisa Gaye and Frankie Christian Gaye, the singer’s children, originally filed against EMI for “allegedly breaching its obligations to protect the Gaye catalogue,” including his song Got To Give It UP – which Thicke is accused of ripping off, according to the Associated Press. The family claimed that EMI refused to pursue a copyright suit against Thicke because the record label didn’t want to get in the way of the successful Blurred Lines, which was the top-selling single of 2013.
The agreement with Sony “means that Sony/ATV won’t have to defend its impartiality in administering copyrights to both Thicke’s work and Gaye’s. It will also release the company from having to address what was said to have been a conflict inherent in owning 30 percent of the music publishing market,” according to the Hollywood Reporter.
This settlement only ends one lawsuit for the Gayes, however. Their infringement suit against Thicke and co-authors T.I. and Pharrell Williams is still ongoing, and Thicke is also accused of stealing more than one song.
The Gayes and Thicke have been volleying lawsuits between each other since the authors of the risque song filled a preemptive lawsuit against Gaye’s estate in August 2013. Bridgeport Music was also named in the lawsuit because it owns the rights to Sexy Ways by Funkadelic, which has also been said to be similar to Thicke’s song. This offensive move on the part of Thicke’s team complicates the suit a little because, according to BakerHostetler attorney Oren Warshavsky in an LXBN interview,
this suit is procedurally different than most suits in the sense that it is a declaratory judgement lawsuit, and Robin Thicke and his co-authors are seeking for the court’s declaration that Blurred Lines does not infringe either of those two prior songs.
Preemptively filing may have given Thicke’s legal team the advantages of “choosing the [suit’s] venue,” “taking control of the timing” and “getting the first word in front of the court to frame the case,” according to intellectual property lawyer Keith Randell for Waller TIPs.
Trial lawyer Gerry Fox, of The Fox’s Litigation Strategy Blog, does not agree.
While this offensive move is being heralded as novel, an experienced trial lawyer will have a field day with why the suit was filed if their musicologist was so certain of their opinion. Keep in mind, potential jurors are usually older. The younger folks, the ones actually listening to Thicke, are often able to skip jury duty because of school commitments or they flake and do not show up. Thus, the resulting jury will likely be very in tune with Marvin Gaye and Funkadelic.
The contemporary R&B singer has stuck by his opinion that the songs are in no way similar.
Unless Thicke and the Gaye family is able to reach a settlement, the courts will have to decide the difference between infringement and inspiration, writes Warshavsky in the IP Intelligence Report.
Copyrights protect an artist’s expression of ideas, but not the ideas themseleves. Thus the copyright covering Got To Give It Up does not protect those portions of the song that are common; it protects only protects those parts of the song that are original to Marvin Gaye. …
The fact that [Gaye] sang a song in a high voice and with a relatively fast beat is not original. However, the words of the song, the percussion actually used and the other portions of the melody and harmony—and certainly the combination of all of the elements—are original to Marvin Gaye. Those are exactly the types of elements that express Marvin Gaye’s creativity and thoughts and that convey a message to any listener of Got To Give It Up. These are elements specifically created by Gaye intended to evoke emotion and interest. As such, these are all elements that the court will likely deem original to Gaye and thus protectable.
Though Sony/ATV and EMI have managed to work their way out of the dispute, litigation between Gaye’s estate and Robin Thicke is still ongoing.