copyright question

 Dear Doc:

I read recently that music stars Robin Thicke, Pharrell “Hat” Williams and Clifford “TI” Harris Jr. have sued the late Marvin Gaye’s kids. Thicke and his buddies, according to the news, claim that they did not steal parts of Gaye’s song “Got to Give it Up” in the hit from a year ago called “Blurred Lines” and they want a judge to say so, too. Of course, the Gaye kids have countersued (doesn’t everyone?) So what gives, and what about the deposition that Thicke gave in the case?

Thicke and Tired of Dumb Litigation

Dear T&T:

You’ve got the facts basically right. The Gaye kids said in public that Thicke et al. (that’s lawyer talk for “all y’all”) misappropriated (that’s lawyer talk for “done ripped off”) certain musical elements of “Gotta Give it Up”, Gaye’s blockbuster 1977 hit. The Gaye kids claim that “Blurred Lines” is an infringement of their copyright in their dad’s song (and to make matters legally complex, they don’t own all of the copyright rights, just some of them.)

Courts decide these kinds of cases by comparing the two compositions, and trying to figure out if one is either a direct copy of the other, or whether the writers of the allegedly infringing music had access to the original, and produced another composition that is “substantially similar” to the original. Such determinations are often made with the help of expert witnesses (musicologists) who discuss the structure of the musical components (bass lines, melodies, rhythms, etc.). Then it’s up to a jury to sort it all out.

During his deposition in the case last April, Robin Thicke was a textbook example of how not to give testimony. He complained about having to listen to a “mashup” of the two songs, saying, “It’s like nails on a f-ing chalkboard. … This is [like] Stanley Kubrick’s movie Clockwork Orange. Where he has to sit there and watch … Mozart would be rolling in his grave right now.”

Thicke was asked about an interview that he gave to GQ Magazine in which he 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 he started playing a little something and we literally wrote the song in about a half hour and recorded it.” Thicke replied that he, “had a drug and alcohol problem for the year” and “didn’t do a sober interview” (full transcript).

Thicke was then asked about the song:

“Q: Were you present during the creation of ‘Blurred Lines’?

Thicke: I was present. Obviously, I sang it. I had to be there.

Q: When the rhythm track was being created, were you there with Pharrell?

Thicke: To be honest, that’s the only part where – I was high on Vicodin and alcohol when I showed up at the studio. So my recollection is when we made the song, I thought I wanted – I  – I wanted to be more involved than I actually was by the time, nine months later, it became a huge hit and I wanted credit. So I started kind of convincing myself that I was a little more part of it than I was and I – because I didn’t want him – I wanted some credit for this big hit. But the reality is, is that Pharrell had the beat and he wrote almost every single part of the song.”

Remember, this is just a deposition. Whether that testimony ever makes it in front of a jury, and whether they determine that there has been copyright infringement is still in the future. For now, though, the lesson of the case for the “Doc” is very un-blurred. Before you give a deposition, know your lines, and before you go into the studio, try to be clear. Oh, and try not to throw your friends under the litigation bus if you can by being truthful and cooperative.

Until next time,

The Doc

— Lawrence A. Husick, Esq.