Author: Jon Siderits, Associate Member, University of Cincinnati Law Review
On March 10, 2015, a federal jury found that Robin Thicke and Pharrell Williams infringed a copyright owned by the heirs of Marvin Gaye, by copying substantially from Gaye’s song “Got to Give It Up” when they created their 2013 hit “Blurred Lines.” While other recent copyright disputes involving major recording artists have settled without either party ever filing suit, the battle between the “Blurred Lines” writers and Gaye’s heirs was particularly contentious, all the way up to the uncertain ending. While the heirs have ultimately triumphed (assuming Thicke and Williams do not appeal), a pre-trial decision by the presiding judge to limit the scope of their copyright to a set of written sheet music, rather than the song’s recording, easily could have derailed their case and led to the opposite outcome. Despite the judge’s effort to apply the correct, albeit antiquated, law to the issue, extending the copyright protection to the recording would have been an appropriate, legally supported decision that would have sent a clear message to would-be infringers, and likely would have resulted in an earlier resolution of the case.
The Clash over “Blurred Lines”
Robin Thicke’s smash-hit song “Blurred Lines” was the best-selling single in the entire world in 2013, when it spent months topping charts in the United States and worldwide. As of early 2015, the song has sold over seven million copies, and the song’s music video has been viewed over 300 million times on YouTube alone. Nominated for two Grammy Awards, “Blurred Lines” has clearly amassed a great deal of fame and financial success for its three writers, who include Thicke, Williams, and Clifford “T.I.” Harris, Jr. However, the trio’s songwriting skills were called into question when the heirs of 1970’s Motown legend Marvin Gaye asserted that the song infringed on the copyright of Gaye’s own number-one hit “Got to Give It Up.” Anticipating an infringement suit, Thicke and his co-writers filed for a declaratory judgment of non-infringement in the United States District Court for the Central District of California; Gaye’s heirs subsequently filed a counterclaim for infringement. 
A plaintiff must establish two primary elements to prevail on a claim of copyright infringement: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. The second element may be established by “showing that defendant had access to plaintiff’s work and that the two works are ‘substantially similar.’” In the “Blurred Lines” dispute, it was uncontested that the song’s writers had access to Gaye’s song. Indeed, Thicke indicated on numerous occasions that “Got to Give It Up” was one of his favorite songs. Thicke had even discussed “mak[ing] something like that, something with that groove” with Williams. Moreover, the writers did not dispute that Gaye’s heirs own a valid copyright in the song. The major dispute in this case, however, was the extent of that copyright’s scope, which significantly affected Gaye’s heirs’ ability to prove substantial similarity.
Prior to the trial, the heirs argued that the copyright extends to the actual sound recording of the song, as is usually the case in these sorts of disputes. Therefore, they argued, the sound recordings of “Got to Give It Up” and “Blurred Lines” ought to be compared side-by-side to analyze their similarities. Unfortunately for the heirs, however, Williams and Thicke persuaded the District Court judge that the copyright is much more limited than that. Despite the ultimate victory for the heirs, this decision had a major impact on the case.
Court Limits the Scope of Gaye’s Copyright
California District Court Judge John A. Kronstadt ruled in October that Gaye’s heirs’ copyright extends only to the written sheet music for the song that was deposited at the Copyright Office in 1977. The court’s decision was based primarily on the fact that the song was created and registered at the Copyright Office prior to the effective date of the 1976 Copyright Act, and thus the issue was governed by the 1909 Copyright Act. Under that law, “in order to claim copyright in a[n unpublished] musical work . . . the work had to be reduced to sheet music or other manuscript form” which subsequently must have been deposited with the Copyright Office. The court recognized the dramatic difference between the requirements set by the 1909 Act and the 1976 Act: under the 1976 revision, copyright protection automatically applies to any original work of authorship when it is “fixed in any tangible medium of expression.” Thus, had the 1976 Act applied, the copyright scope would have unquestionably extended to the actual sound recording of “Got to Give It Up,” and the recording would have been used as the basis for the infringement analysis.
Gayes’ heirs tried to argue that the deposited sheet music only served to identify the work, not define it, and that copyright protection under the 1909 Act included the sound recording because the sheet music reasonably identified the recording. The court, however, found that the heirs’ argument “misapplie[d] a 1976 Act standard to compositions governed by the 1909 Act.” Moreover, the court noted that the heirs did not offer any evidence that the song’s recording was published prior to the registration, “or reduced to a manuscript form that was more complete than what is included in the lead sheets [deposited with the Copyright Office].” Therefore, the court concluded that the only protectable elements of “Got to Give It Up” are those elements contained in the deposited sheet music, and so only those elements could be compared with “Blurred Lines” for purposes of showing substantial similarity.
Critiquing The Court’s Decision
Although Gaye’s heirs still had a case against Thicke and his co-writers, the decision to limit the scope of their copyright to the sheet music was a major blow that seemed to greatly reduce their chances of a successful outcome. Unfortunately, the court did not take advantage of the opportunity to resolve the issue with a more pragmatic approach. As the “Blurred Lines” writers pointed out, the decision meant that “[m]usical elements . . . such as the ‘groove’ of the sound recording, the sounds of the instruments, or other recording or performance elements (e.g. falsetto singing, party noise) . . . simply have no bearing on the infringement claim.” So, the jury was denied the opportunity to hear many of the apparent similarities between the two end products. According to the heirs, that made this the only case in copyright litigation history where two complete commercial recordings were not compared.
As the heirs pointed out in their brief on the issue, case law does provide some support for extending the breadth of a copyright to include elements of the work not included in the deposit copy. The court was quick to dismiss a number of cases cited by the heirs because they “concern the jurisdictional effect of incomplete or inaccurate copyright deposits and do not address what material is actually protected.” However, these cases do shed some light on the issue. For example, Knowledgeplex, Inc. v. Placebase, which dealt with copyright protection for computer programs, stated that “all that is required [in the deposit] is enough of the source code . . . to reveal an appreciable amount of original computer code.” Clearly, then, the courts have already contemplated the possibility that a deposit copy of a work may not include the full scope of the work itself, and the court could have imported a similar standard for sound recordings registered under the 1909 Act and thus extended the scope of the copyright beyond the content of the deposit.
The heirs also relied on the Ninth Circuit’s standard for the adequacy of deposits, which it has described as “broad and deferential” to copyright holders. They provided a number of cases for support, but as the court pointed out, those cases only applied that standard to the jurisdictional issue of whether an action for federal copyright infringement might be brought in the first place; however, it would have been both logical and appropriate to extend it to include the issue of copyright scope as well. Specifically, and as the court itself recognized, the deposit requirement is “merely a limitation on the ability to bring an action for infringement.” In each of those cases cited by the heirs, discrepancies between the actual work and the deposit copy did not preclude the copyright holder from bringing an infringement action in federal court based on the actual completed work. None of these cases stated that the copyright holder’s claim is limited to the scope of the deposit copy. Rather, by declining to limit the court’s jurisdiction to the material contained in the deposit copy, these cases reasonably imply that the same “broad and deferential” standard may apply to assessing the scope of the copyright protection. Moreover, the court did not cite any cases that create an absolute bar against importing portions of a completed work into the deposit copy when conducting an infringement analysis.
As stated by the court in Knowledgeplex, “[a] key purpose of . . . the deposit requirement is to prevent confusion about which work the author is attempting to register.” The heirs were therefore also correct in their argument that the deposited sheet music of “Got to Give It Up” simply served to identify the work that Marvin Gaye sought to register (the song as it was recorded), not to define the scope of protection. The sheet music clearly identified which song it related to—despite the exclusion of many musical elements. As discussed in a declaration by the heirs’ expert, a sheet music deposit copy typically includes “the melody, lyrics, and harmony” of the song. While not representative of the full scope of the completed work, these component elements can serve the purpose described in Knowledgeplex of identifying the work intended for registration. As the court in Knowledgeplex further stated, “[t]he deposit requirements are designed to aid the Copyright Office in its record-keeping duties.” Judge Kronstadt’s strict reading of the statute disregarded the fact that Marvin Gaye’s sheet deposit fulfills these purposes, and that is all that it should be required to do under the 1909 Act.
Finally, Thicke and his co-writers should have been on notice that “Got to Give It Up” is protected by copyright. Other sound recordings from the 1970s are only about halfway through their copyright duration. And, as the court recognized, sound recordings made after the 1976 Copyright Act went into effect (shortly after “Got to Give It Up” was published) have been protected in their entirety regardless of the contents of any related sheet music. In short, the “Blurred Lines” writers should not have been permitted to benefit from the convenient discrepancies between the deposit sheet and the recording, and the faulty requirements of an outdated law, as part of their effort to avoid a finding of infringement. This essentially provides copiers with a legal loophole to circumvent an original songwriter’s copyright by strategically taking only those elements not specifically contained in the deposit. Indeed, if this ruling stands, the popular “groove” and other performance elements of “Got to Give It Up” not in the sheet music—arguably the most recognizable and valuable parts of the song—will be vulnerable to open plagiarism.
The Heirs Win Nonetheless
Judge Kronstadt’s ruling quickly took its toll on the heirs’ case. An expert musicologist called by the heirs to testify about certain major similarities between the songs was grilled on cross-examination because her analysis seemed based on the sound recording—not the sheet music. Some of the similarities she identified included the use of repeated notes, similar tone patterns, similar rhythms, and a certain riff she identified as “Theme X.” However, the writers’ attorney repeatedly asked her to identify the Theme X riff in the sheet music, and she repeatedly dodged the question. Ultimately, she answered that the riff’s notes are “implied” by the sheet music’s indication to harmonize an A7 chord, so that “[a] professional musician would know to sing them.” Without the sound recording of “Got to Give It Up” as their proverbial smoking gun, the heirs’ case looked weak. An attorney for the “Blurred Lines” writers even accused the heirs, during closing arguments, of not knowing what their copyright covered.
Despite these and other setbacks that resulted from the court’s failure to extend protection to the recording, the jury ultimately found for the heirs, awarding them a total of $7.4 million. Even though the victorious heirs are unlikely to appeal a decision favorable to them, the court’s decision to limit the scope of their copyright to the sheet music sets a dangerous precedent that allows infringers to undermine the copyrights of musical works that pre-date the 1976 Act. Notably, even if Thicke and Williams choose to appeal the adverse verdict to the Ninth Circuit, the appellate court might recognize the dangers inherent in the district court’s ruling and apply its “broad and deferential” standard to assessing the scope of the copyright. This would give musical works registered under the 1909 Act the same scope of protection as their 1976 Act counterparts; however, it would also make the case against Thicke and Williams even stronger, thus reducing the likelihood that they will appeal. In any case, the district court’s uneasy ruling on the scope of copyrights stands—at least for now—and is limited in its persuasive authority, but without correction could lead to further destabilization of pre-1978 copyrights.
 See Daniel Siegal, Thicke, Pharrell Owe $7.4M in “Blurred Lines” IP Fight, Law 360 (Mar. 10, 2015, 5:38 PM), http://www.law360.com/ip/articles/628694?nl_pk=c04f6202-9de5-4f91-88d8-8a97d280475b&utm_source=newsletter&utm_medium=email&utm_campaign=ip.
 See Daniel Siegal, “Blurred Lines” Writers Called Liars As Case Heads to Jury, Law 360 (Mar. 5, 2015, 9:29 PM), http://www.law360.com/articles/628456. Thicke and Williams are not the only modern pop artists to recently find themselves in a copyright dispute brought by an oldies singer. English singer-songwriter Sam Smith recently reached a settlement with Tom Petty and his co-writer in a copyright dispute in which Petty alleged that Smith’s Grammy-winning “Stay With Me” copied elements of Petty’s own 1989 smash hit “I Won’t Back Down.” See Kelly Knob, Tom Petty to Get Royalties for Sam Smith’s “Stay With Me,” Law 360 (Jan. 26, 2015, 8:35 PM), http://www.law360.com/ip/articles/615102?nl_pk=c04f6202-9de5-4f91-88d8-8a97d280475b&utm_source=newsletter&utm_medium=email&utm_campaign=ip.
 Daniel Siegal, Gayes’ Expert Faces Absent Notes At “Blurred Lines” Trial, Law 360 (Feb. 27, 2015, 10:38 PM), http://www.law360.com/articles/626345/gayes-expert-faces-absent-notes-at-blurred-lines-trial?article_related_content=1.
 Id. See also RobinThickeVevo, “Robin Thicke – Blurred Lines ft. T.I., Pharrell,” Youtube (Mar. 20, 2013), https://www.youtube.com/watch?v=yyDUC1LUXSU.
 Blurred Lines, Wikipedia, http://en.wikipedia.org/wiki/Blurred_Lines (last visited Mar. 8, 2015).
 Williams v. Bridgeport Music, Inc., 2014 WL 7877773 at *1 (C.D. Cal. Oct. 30, 2014).
 Williams, 2014 WL 7877773 at *1.
 Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).
 Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir. 1996).
 Williams, 2014 WL 7877773 at *5.
 Siegal, supra note 3. Thicke has since backpedaled on these statements, even claiming that he was intoxicated at the time he made them. Id.
 Williams, 2014 WL 7877773 at *5.
 Siegal, supra note 3.
 Williams, 2014 WL 7877773 at *8-10.
 Id at *8. The effective date was January 1, 1978. 17 U.S.C. § 102.
 Williams, 2014 WL 7877773 at *9.
 Compare RobinThickeVevo, supra note 4, with The BLUES, “Marvin Gaye – Got to give it up,” YouTube (Jun. 9, 2009). Judge Kronstadt has allowed an edited version of the “Got to Give It Up” recording to be played for the jury, with those elements absent from the sheet music digitally removed. See Beth Hutchens, How Sweet It Is to Be Sued by You (for Copyright Infringement), IP Watchdog (Feb. 19, 2015), http://www.ipwatchdog.com/2015/02/19/how-sweet-it-is-to-be-sued-by-you-for-copyright-infringement/id=54955/ .
 Hutchens, supra note 20.
 Counter-Claimant’s Joint Memorandum of Points and Authorities in Opposition to Plaintiff’s And Counter-Defendant’s Motion for Summary Judgment or, in the Alternative, Partial Summary Judgment, Williams v. Bridgeport Music, Inc., Case No. CV13-06004-JAK (AGRx), Dkt. 120 at 27-30 (C.D. Cal. Oct. 20, 2014) [hereinafter “Heirs’ Brief”]. As used herein, “deposit copy,” or “deposit,” refers to the papers filed with the Copyright Office that are representative of the work sought to be protected.
 2008 WL 5245484 (N.D. Cal. Dec. 17, 2008) (emphasis in original).
 Heirs’ Brief, supra note 22, at 27.
 Williams v. Bridgeport Music, Inc., 2014 WL 7877773 at *9-10 (C.D. Cal. Oct. 30, 2014).
 Id. at *8.
 See Knowledgeplex, 2008 WL 5245484 at *9-10, Three Boys Music Corporation v. Bolton, 212 F.3d 477, 486-487 (9th Cir. 2000).
 See Williams, 2014 WL 7877773 at *8-10.
 Knowledgeplex, 2008 WL 5245484 at *9.
 See Heirs’ Brief, supra note 22, at 28.
 Knowledgeplex, 2008 WL 5245484 at *9.
 The copyright term for recordings published around 1977 is 95 years. See 17 U.S.C. § 303.
 Williams, 2014 WL 7877773 at *8-9.
 Note that the sheet music deposit was made in 1977, after the passage of the 1976 Copyright Act, but prior to its effective date. Since the terms of the 1976 Act provided no retroactive effect, perhaps a savvier attorney might have advised Gaye to hold off on registration until 1978, when the Copyright Office began accepting deposits of sound recordings. In that scenario, Gaye’s heirs would have certainly prevailed in using the recording to show substantial similarity.
 See Siegal, supra note 3.
 See Siegal, supra note 2.
 See Siegal, supra note 1.