By Eriq Gardner, The Hollywood Reporter
The battle over a $16 million song explored how much similarity is too much.
Good artists borrow. Great artists steal. On Tuesday, a California federal jury delivered its own message to artists everywhere that inspiration can rise to copyright infringement.
The verdict was reached after eight days of trial testimony examining whether Robin Thicke and Pharrell Williams‘ “Blurred Lines,” one of the most successful songs of the young century, was improperly drawn from a soulful hallmark from the prior one — Marvin Gaye‘s 1977 hit “Got to Give It Up.” Ultimately, a jury comprised of five women and three men heard dueling opinions regarding “Blurred Lines” and decided to order Thicke and Williams to pay $4 million in copyright damages plus profits attributable to infringement, which for Thicke was determined to be $1.8 million and for Williams was determined to be $1.6 million. The total amounted to almost $7.4 million, an astonishing figure considering that the jury also found that the copyright infringement wasn’t willful.
Richard Busch, attorney for the Gaye family, said he is seeking an immediate injunction to halt sale and distribution of the song “Blurred Lines” and that he will file the official paperwork by next week. He said it is typical in copyright cases that post-verdict injunctions lead to a settlement out of court.
Howard King, attorney for Williams, Thicke and rapper T.I (aka Clifford Harris Jr.), said that because the jury did not find that any of the labels infringed, he thinks Busch will have hard time getting any such injunction.
The hardly predictable outcome over a song that made more than $16 million in profits will resonate in the music industry, where copyright lawsuits are commonplace, but few such suits ever make it to trial. Most never get past the summary judgment phase because judges carefully draw the line on any lawsuits alleging misappropriation of nonprotectable ideas. The highest-profile disputes like the one between Tom Petty and Sam Smithover “Stay With Me” usually settle. Not only did the “Blurred Lines” case go the distance, but both sides brought esteemed entertainment litigators to convince the jury.
King spoke about how artists need wide berth in their creative pursuits. During opening arguments, he told the jury, “We’re going to show you what you already know: that no one owns a genre or a style or a groove. To be inspired by Marvin Gaye is an honorable thing.”
Over the next week and a half, King would execute a two-pronged strategy: First, he emphasized that Frankie and Nona Gaye only owned compositional elements in the “Got to Give It Up” sheet music, leaving out more recognizable elements of the recording like the percussion and singing. Second, he had witnesses testifying both to the differences between “Blurred Lines” and “Got to Give It Up” as well as the similarities in other famous songs.
The case has been tough on Thicke thanks to depositions revealing he lied in media interviews and was drunk and high on Vicodin while at the recording studio with Williams. But the singer attempted to do himself a favor by showcasing that songs can be stitched together with ease and that perceptions about similarity can be deceiving. On the witness stand, he sang a medley of U2’s “With or Without You,” The Beatles’ “Let It Be,” Alphaville’s “Forever Young,” Bob Marley‘s “No Woman No Cry” and Michael Jackson‘s “Man in the Mirror.”
Williams also testified about his song-creation process, admitting to jurors that “Blurred Lines” channels “that ’70s feeling” and that he looked up to Gaye, but that to feel isn’t copyright infringement. “The last thing you want to do as a creator is take something of someone else’s when you love him,” said Williams, expressing a point of view that’s in contrast to the maxim that good artists borrow and great artists steal.
Busch appeared to know he’d need to overcome the celebrity charisma of his counterparts. “They will smile at you and they will be charming,” he said in opening arguments. “Keep one thing in mind: They are professional performers.”
The Gaye family was handicapped by U.S. District Judge John Kronstadt‘s decision to preclude use at trial of the original sound recording of “Got to Give It Up” because Gaye’s copyrights on the song were limited to the sheet music compositions. Before the trial began, Busch wondered whether his side would get a fair trial, and while the judge eventually allowed a stripped-down version of Gaye’s song to be played for the jury’s ears, the attorney was disturbed by comments made by the Thicke side that he argued had“poisoned” the trial. The judge dismissed those concerns. Any lingering unhappiness over the judge’s decision leading to the jury’s verdict will likely be taken up on appeal.
To demonstrate copyright infringement, Busch instead leaned on the musicologists who testified to similarities in signature phrase, hook, keyboard-bass interplay, lyrics and theme of the songs. Although “Blurred Lines” was the headliner, the Gaye family also attempted to prove that Thicke’s “Love After War” was an infringement of Gaye’s “After the Dance.”
Then, there was the rare peek at “Blurred Lines’ ” financial success as the Gaye family made their case for damages. Busch had accounting experts speak about all the money made — including $5.6 million in profits to Thicke, $5.2 million to Williams, $700,000 to T.I. and the rest of the $16.7 million in overall profits to record companies Interscope, UMG Distribution and Star Trak. The Gayes also wanted some of the $11 million in touring income attributable to “Blurred Lines’ ” success as well as money for overhead costs and statutory damages for willful infringement.
All told, the Gaye family was seeking more than $25 million — a mammoth demand that would shatter the song plagiarism high-water mark of $5.4 million that a California court ordered Michael Bolton and Sony to pay two decades ago for infringing The Isley Brothers’ “Love Is a Wonderful Thing.”
In closing arguments, Busch raised the issue of Thicke’s credibility, telling jurors, “What it boils down to is, ‘Yes, we copied. Yes, we took it. Yes, we lied about it. Yes, we changed our story every time.’ … It boils down to this: Who do you believe? … Are you going to believe Robin Thicke, who told us all he’s not an honest person?”
King offered a rebuttal.
“Why would Mr. Williams need to copy anyone to create a hit?” he asked the jury. “Why would Mr. Thicke and Mr. Williams endure a proceeding like this, where their personal financial details are revealed to the world?”
In what might now be the landmark legal controversy over songcraft, the jury decided that Thicke and Williams infringed both songs and had to pay $4 million in damages (essentially accepting the Gaye family’s contention that if “Got to Give It Up” was properly licensed, the family would have gotten a 50 percent cut of the $8 million in “Blurred Lines” publishing revenue). On top of that, the two songwriters had to hand back nearly $3.4 million of their profits on “Blurred Lines.” The verdict will echo through the ages.