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Marvin Gaye music copyright infringement case – “substantial similarity” and de minims doctrine discussed

Posted by Steve Vondran | Sep 15, 2018 | 0 Comments

Attorney Steve® Copyright Case Briefs:   Williams v. Bridgeport Music, Inc., [United States District Court, C.D. California].  California music infringement law firm.

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SUMMARY:

Here is a case that comes from the Central District in California.

Plaintiff musicians filed this action seeking a Declaratory Judgement that their song, “Blurred Lines” did not infringe the copyright of “Got to Give It Up” or otherwise violate the Defendants' rights. Defendants counterclaimed.  The complaint for declaratory relief alleged:

“Plaintiffs, who have the utmost respect for and admiration of Marvin Gaye, Funkadelic and their musical legacies, reluctantly file this action in the face of 27 multiple adverse claims from alleged successors in interest to those artists. Defendants continue to insist that plaintiffs' massively successful composition, “Blurred Lines,” copies “their” compositions. In the case of the Marvin Gaye2 related defendants (the “Gaye defendants”), it's a song called “Got To Give It Up.”  For the owner of Funkadelic's songs, Bridgeport Music, Inc. (“Bridgeport”), it's a 4 song called “Sexy Ways.” But there are no similarities between plaintiffs' composition and those the claimants allege they own, other than commonplace musical elements. Plaintiffs created a hit and did it without copying anyone else's  composition.”

“On information and belief, Bridgeport is and at all times material herein has been a corporation organized and existing under the laws of the State of Michigan and is in the business of acquiring and exploiting copyright interests in musical compositions, and in the business of trolling for opportunities to threaten to 10 sue and to sue musicians, performers, producers and others in the rnusic industry for infringement of its copyrights.”

“Bridgeport regularly and systematically does business in the state of California by, among other things, negotiating and granting licenses to use the songs in which it has a copyright interest to licensees in  California and resorting to the California courts. Bridgeport has claimed an 15 ownership interest in the copyright to the composition “Sexy Ways” written by 16 George Clinton and Grace Cook.”

As you can see from this article, some refer to people trying to enforce music rights as “sample trolls” as noted in this case with Jay-Z.

FACTS:

Plaintiffs Pharrell Williams, Robin Thicke, and Clifford Harris, Jr. (“Plaintiffs”) composed the song “Blurred Lines.” The Defendants, Nona Marvisa Gaye and Frankie Christian (“Defendants”) counterclaimed that Plaintiffs, along with Star Trak Entertainment, Interscope Records, UMG Recordings, Inc., and Universal Music Distribution infringed on the copyright to “Got to Give It Up” with their song “Blurred Lines.” A second counterclaim alleged that the Plaintiffs infringed the copyright to Gaye's “After the Dance,” through their work on another Thicke song, “Love After War.”

Marvin Gaye was an influential American singer-songwriter. Gaye recorded the song “Got to Give It Up” at his studio in 1976. “Got to Give It Up (Part 1 and 2) were registered with the United States Copyright Office in 1977, and subsequently renewed. “Got to Give It Up” was released on or about March 15, 1977 on the album Live at the London Palladium. “After the Dance” was written, composed, recorded and released by Marvin Gaye in 1976 on the album I Want You. It was registered with the United States Copyright Office in 1976 and subsequently renewed. Plaintiffs conceded that they had access to “Got to Give It Up” and “After the Dance” when “Blurred Lines” and “Love After War” were composed.

The Defendants introduced testimony of a musicologist, who concluded that:

“[a] preliminary review comparing ‘Give it Up' and ‘Blurred [Lines]' has revealed a constellation of eight substantially similar features…” and that the similarities “surpass the realm of generic coincidence, reaching to the very essence of each work.” Those eight features include:

(1) the signature phrase in main vocal melodies,

(2) hooks,

(3) hooks with backup vocals,

(4) core theme, or “Theme X,”

(5) backup hooks,

(6) bass melodies,

(7) keyboard parts, and

(8) unusual percussion choices.

The Plaintiffs' musicologist, prepared a 55-page Declaration comparing the songs at issue. She found no substantial similarity between the melodies, rhythms, harmonies, structures and lyrics of “Blurred Lines” and “Got to Give It Up” and concluded that the songs were not substantially similar. Her key opinion was that Finell's similarities are “primarily melodic” but there were no two “consecutive notes” in any of the melodic examples that have the same pitch, the “same duration, and the same placement in the measure.” She also said that many of the supposed similarities were not original but comprised the “basic building blocks of musical composition…” She had a similar critique for the “After the Dance” and “Love After War” comparisons.

Defendants also retained a professor of African American music from Harvard. She presented evidence of several similarities between the songs and disputed some of Wilbur's points. Defendants also offered a 41-page Declaration disputing some of the conclusions and methodology used by Wilbur.

PROCEDURAL HISTORY:

On July 22, 2014, Plaintiffs filed a Motion for Summary Judgment (“Motion”). On September 8, 2014, Defendant filed an opposition, which they subsequently amended. On September 22, 2014, Plaintiffs filed a reply. After a hearing on the Motion on October 20, 2014, the matter was taken under submission. The court then denied the Motion.

ISSUE:

Are the songs in question substantially similar to songs written and owned by Defendant such that copyright infringement of the music has occurred?

RULE OF LAW:

To establish copyright infringement, two matters must be established:

“(1) ownership of a valid copyright,

and

(2) copying of constituent elements of the work that are original.”

See Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991).

“Because direct evidence of copying is not available in most cases, [a] plaintiff may establish copying by showing that defendant had access to plaintiff's work and that the two works are ‘substantially similar' in idea and in expression of the idea.” Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir.1996).

ANALYSIS:

Are the two musical works “substantially similar?”

  1. Extrinsic Test

The Ninth Circuit employs a two-part analysis to determine whether two works are substantially similar. This analysis involves “an objective extrinsic test and a subjective intrinsic test.”

When being decided on summary judgment, the court only applies the extrinsic test. When applying the extrinsic test, a court considers expert testimony to perform “analytical dissection” of a work. This entails breaking works “down into their constituent elements and comparing those elements for proof of copying as measured by substantial similarity. To the extent that a work is unprotectable, the court does not consider that portion in its analysis.

  • Scope of Defendant's Copyright

Defendants registered the challenged works with the U.S. Copyright Office in 1977 and 1976. Upon registration, they submitted to the Copyright Office “lead sheets,” which are sheet music representing the lyrics and some of the melodic, harmonic, and rhythmic features that appear in the recorded works.

The Plaintiffs asserted that the only subject matter protected by the Defendants' copyright in the composition was what was contained in the sheet music that was deposited with the Copyright Office. As such, other features of the songs that appear in the recordings should be disregarded. Plaintiffs argued that Defendants' experts' analyses were inherently flawed because they were based off the recording and not the sheet music. Defendants responded by pointing out that the sheet music did not exist prior to the recording. They contended that prior to 1978, the Copyright Office refused to accept recordings as deposits. Defendants cited to case law to support the proposition that a court may review recorded versions of the song for “composition” elements. Finally, the Defendants' experts both contend that the deposit copy is not “intended to represent fully the composition” but rather be a skeletal representation or a sketch.

Under the 1909 Act which governs both pieces of Defendants' work at question, a publication of a work with proper notice was necessary to obtain statutory copyright protection. But no copyright infringement action could be brought before the deposit was made and the work registered. “Date of Publication” is defined in the 1909 Act as “in the case of a work of which copies are reproduced for sale or distribution [as] the earliest date when copies of the first authorized edition were placed on sale, sold, or publicly distributed by the proprietor of the copyright or under his authority.”

The Court held that the deposit of sheet music could not limit the scope of the Defendants' copyright. However, the Court also notes that the Defendants failed to offer evidence that either of their songs was published or reduced to a manuscript form that was more complete than what was included in their lead sheets. The Court held that while the 1976 Act allowed compositions to be protected when fixed in “phonorecords,” the 1909 Act did not consider such recordings to constitute the “publication of a composition.” Since the lead sheets are the only manuscripts of the songs, the court held that a recording of a pre-1978 work does not add to the subject matter protected by the copyright of the published work. Therefore, the scope of the Defendants' copyright was confined to the content of the lead sheets.

  • Plaintiff's Access to the Works

The Defendants submitted evidence that Plaintiff Thicke gave media interviews wherein he stated that “Got to Give It Up” and Marvin Gaye were inspirations for “Blurred Lines.” Plaintiff Thicke claimed he was intoxicated when he made these statements. Thicke also denied that he was even present when Williams started composing the song. The Court held that Thicke's statements, while inconsistent, do not constitute direct evidence of copying. The Court pointed to Narell v. Freeman, where the Ninth Circuit affirmed summary judgment in a copyright infringement action where the alleged infringer admitted that she took certain “language” from another authors book because there was no evidence that she copied protected elements from the book.

  • Analytic Dissection
  • “Got to Give It Up”/”Blurred Lines” 

The Finell Report and Declaration

Finell identified a “constellation” of eight alleged similarities between “Got to Give It Up” and “Blurred Lines.” Even though some of these features do not appear in the copyrighted composition, Finell testified that she did not change her preliminary findings or conclusions after reviewing the deposit. Plaintiffs effectively conceded that the signature phrase (Similarity 1), hooks (Similarity 2), and one of the two bass melodies (Similarity 6A) are contained in the “Got to Give It Up” copyright deposit.

The Signature Phrase

According to Finell, the two songs share similarities in their signature phrases in that:

(a) both repeat their starting tone several times,

(b) both contain the identical scale degree sequence of 5-6-1 followed by 1-5,

(c) both contain identical rhythms for the first six tones,

(d) both use the same device of a melodic “tail” (melisma) on their last lyric, beginning with the scale degrees 1-5,

and

(e) both contain substantially similar melodic contours.

On the other hand, Wilbur found no substantial similarity because she claimed that the melody, harmony, and rhythm of the songs were different. She notes that only one note in the signature phrases have the same pitch and placement. Finell disputed Wilbur's methodology and conclusions. “The methodology is built on requiring absolute identity in all 3 melodic comparison factors of

(A) pitch or scale degree,

(B) duration,

and

(C) rhythmic placement for every single note in order to be similar.”

Hooks

Finell contended that three of the four notes of the songs' hooks are identical in scale degree. Wilbur countered that Finell failed to space the hooks correctly within the measure, and that she omitted the subsequent melisma to give a misleading impression of similarity.

Bass Melodies

  1. The opening bass line

Finell contended that the bass line that begins in bars 1–4 of “Blurred Lines” and is repeated throughout the song is similar to the bass line in bars 1–4 of “Got to Give It Up,” which appears on the lead sheet. Wilbur claimed that the only similarity between the bass patterns is that “the bass play[s] the root of the chord,” which she dismisses as a “commonplace idea” and “the most fundamental role of the bass in popular music.” She pointed to the 1972 Curtis Mayfield song “Superfly” as prior art that expresses this commonplace idea.

  1. The descending bass line

The Court held that the descending base line that recurred intermittently throughout the verse of “Got to Give It Up” was not protected because it was not on the deposit sheet.

Keyboard Parts

Wilbur claimed that the keyboard part in “Got to Give it Up” was not contained in its Copyright deposit. However, the chord in question does appear in the deposit. The Court allowed the analysis of the similarity in keyboard pitches to move forward but ended the comparison of the similar keyboard rhythms.

Unprotected elements

The Court held that the backup vocals, a portion of the song referred to as “Theme X,” the percussion choices, and several other similarities were unprotected because they weren't in the deposit materials.

Harmonic Similarity

Monson contended that the resemblance of the melodies was so strong that the chord progression on “Got to Give It Up” can serve as a substitute progression for “Blurred Lines.” Wilbur's declaration pre-dated Monson's and did not respond to this analysis. However, she concluded that there was no substantial similarity in the harmonies of the songs because there is no sequence of two chords played in the same order and for the same number of measures (duration) in “Got to Give It Up” and “Blurred Lines.”

Melodic Similarity

In “Got to Give It Up,” the lead vocal melody on the words “move it up” and “turn it round” chromatically ascends from the pitch G to A. Similarly, the comparable melodic line in “Blurred Lines” was on the words “hey, hey, hey.” Monson's transcription of this portion of the “Got to Give It Up” melody was the same as that contained in the copyright deposit. She claimed that this similarity “cannot be accidental.”

  • Filtering of Unprotected Elements

Plaintiffs contended that the alleged similarities identified by Defendants were “commonplace and generic building blocks of musical composition.” They claimed that copyright law only protects “an author's expression; facts and ideas within a work are not protected.” Commonplace expressions within a genre, which are called “scenes a faire,” are not protected by copyright because the “expressions are indispensable and naturally associated with the treatment of a given idea.” However, the Court held that the Defendants created a triable issue of fact as to whether their 11-note signature phrase, four-note hook, four-bar bass line, 16-bar harmonic structure and four-note vocal melody are protectable expressions. Summary judgement was denied as to the issues where triable issues of fact existed.

  • “After the Dance”/”Love After War”

The Hook and Melody

Monson described the “Love After War” hook as “an inversion of the ‘After the Dance' hook melody.” Monson contended that “the governing gesture [in ‘Love After War'] is a descent from B–A–G#, an inversion of the ‘After the Dance' gesture,” and that these melodic gestures interact similarly with the harmonic progression. Wilbur stated that the “only melodic similarity in the two songs appears in the chorus of each song and consists of one note with the same pitch and placement in the measure, which is repeated four times in the chorus,” and “the melodic rhythm, the melodic contour, and the duration (with one exception) of that final note are different in each song.”

Harmony and Structure

Monson acknowledged differences in the harmony and form of “After the Dance” and “Love After War,” but claimed that “the two seemingly different progressions are functionally equivalent.” She asserted that “After the Dance” makes certain modulations and substitutions for creative reasons, but that as a functional matter, “‘Love After War' uses the simplest version of a II–V–I progression in E,” and “‘After the Dance uses a substitute II–V–I to heighten the contrast of its modulation from C# minor to E major.”

Wilbur found little harmonic or structural similarity between the two songs. She declared that the only harmonic similarity is the use of an E major 7 chord, which is repeated four times in the chorus, and a B minor 7 chord “that appears once in the chorus of WAR but four times in the chorus of DANCE.” She added that the use of two of the same chords is “commonplace,” and that the placement and rhythm with which these chords are used gives them a different character within each song.

Genuine Issues of Material Fact Exist

The Court held that on these two issues, there was “sufficient disagreement” concerning the extrinsic similarity of “After the Dance” and “Love After War” to present a genuine issue of material fact.

This blog was written by U.S.C. legal graduate Ms. Claudia Lin.

Is the “De minimis” Doctrine at play?

While sampling and lopping is big in hip hop and rap music, some say taking just a few notes or riffs should NOT be copyright infringement.  People may consider this to be deminis.  Many cases have discussed this doctrine of law.  However, when it comes to music fair use it is not always so clear so artists, musicians, and bands need to be very careful in using other artists unlicensed copyrighted works in their music tracks.  See Newton v. Diamond (a 9th circuit court case) had an opportunity to address a similar sampling issue involving a musical composition, and concluded that a three-note sequence with one background note was de minimis.

“Because Beastie Boys' use of the sound recording was authorized, the sole basis of Newton's infringement action is his remaining copyright interest in the “Choir” composition. We hold that Beastie Boys' use of a brief segment of that composition, consisting of three notes separated by a half-step over a background C note, is not sufficient to sustain a claim for infringement of Newton's copyright in the composition “Choir”. We affirm the district court's grant of summary judgment on the ground that Beastie Boys' use of the composition was de minimis and therefore not actionable.”

It should be noted there was a dissent in this case which noted:

“As the majority observes, a use is de minimis only if an average audience would not recognize the appropriation. See Fisher v. Dees, 794 F.2d 432, 434 n. 2 (9th Cir.1986). The majority is correct that James Newton's considerable skill adds many recognizable features to the performance sampled by Beastie Boys. Even after those features are “filtered out,” however, the composition, standing alone, is distinctive enough for a fact-finder reasonably to conclude that an average audience would recognize the appropriation of the sampled segment and that Beastie Boys' use was therefore not de minimis.”

CONCLUSION:

This case illustrates the importance of understanding the governing law concerning copyrights, infringement, fair use, and de minimis infringement as the Copyright Act has gone through several iterations over the years.  If you are in need of a music lawyer we have offices in Santa Monica, Newport Beach, San Diego, San Francisco, and Phoenix, Arizona.   Call us at (877) 276-5084. 

About the Author

Steve Vondran

Thank you for viewing our blogs, videos and podcasts. As noted, all information on this website is Attorney Advertising. Decisions to hire an attorney should never be based on advertising alone. Any past results discussed herein do not guarantee or predict any future results. All blogs are written by Steve Vondran, Esq. unless otherwise indicated. Our firm handles a wide variety of intellectual property and entertainment law cases from music and video law, Youtube disputes, DMCA litigation, copyright infringement cases involving software licensing disputes (ex. BSA, SIIA, Siemens, Autodesk, Vero, CNC, VB Conversion and others), torrent internet file-sharing (Strike 3 and Malibu Media), California right of publicity, TV Signal Piracy, and many other types of IP, piracy, technology, and social media disputes. Call us at (877) 276-5084. AZ Bar Lic. #025911 CA. Bar Lic. #232337

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