In August, Robin Thicke, Pharrell Williams and Clifford Harris Jr. (better known as T.I.) filed a pre-emptive lawsuit against the estate of Marvin Gaye amidst allegations that Thicke’s hit song “Blurred Lines” plagiarized aspects of Gaye’s “Got to Give it Up.” Three months later, Gaye’s estate sued. In addition to the claims against “Blurred Lines,” Gaye’s family also alleged that Thicke’s “Love after War” borrowed gratuitously from Gaye’s “After the Dance.” The family is seeking damages of up to $150,000 per infringement as well as a portion of the profits from the success of “Blurred Lines” and “Love after War.”
In their suit, Nona and Frankie Gaye (daughter and brother of Marvin) claim “Blurred Lines” is “blatant copying of a constellation of distinctive and significant compositional elements of Marvin Gaye’s classic No. 1 song.” The family suggests that Thicke has a "Marvin Gaye fixation,” citing a GQ interview where Thicke says that “Got to Give it Up” is one of his favorite songs and expresses a desire to create a song “like that, something with that groove.” In response, Thicke asserts that there are "no similarities" between his song and Gaye's "other than commonplace musical elements" and that "being reminiscent of a 'sound' is not copyright infringement."
In musical copyright infringement cases, courts have relied on the following two-prong test: It must be proven than the alleged plagiarized had access to the original song and that the two songs in question share unique musical components. As the Gayes have pointed out, Thicke has certainly indicated that he had access to “Got to Give It Up” prior to recording “Blurred Lines.” On the issue of similarity, however, there is no clear-cut answer as to how alike the songs have to be to constitute infringement. Defining the bright line for similarity becomes especially difficult in this case, as it is easy to become lost in a war of words between Gaye’s musicologists and Thicke’s musicologists, with each side testifying with equal conviction that “Blurred Lines” clearly does or does not mimic “Got to Give It Up.”
After listening to both songs, the high-pitched whoops, bass groove and high-end cowbells in the background give the songs an undeniably similar feel. However, the lyrics and vocal melody, which make up a much more substantial part of the song, differ completely. Allegations of copyright infringement that are contested on lyrical and melodical grounds are generally more successful, as these elements are immediate and make up an integral part of a song. For example, Johnny Cash was found guilty of plagiarizing lyrics of his “Folsom Prison Blues” from Gordon Jenkins’ “Crescent City Blues,” while The Beach Boys were found guilty of plagiarizing the melody “Surfin’ USA” from Chuck Berry’s “Sweet Little Sixteen.” Arguments based on background rhythmic and harmonic elements are less effective, as those elements tend to be amore characteristic of a genre than of an individual song. This was the case in the dispute over John Fogerty’s "The Old Man Down the Road" vs. Creedence Clearwater Revival’s "Run Through the Jungle" where Fogerty (who had himself written “Run Through The Jungle” as part of Creedence Clearwater Revival) was not found guilty of infringement. The similar elements were labeled characteristic of the “swamp rock” style rather than specific to a particular song. Applying these examples to the “Blurred Lines” case, we are left with the question of whether the similarities are unique to “Got to Give It Up” or are merely typical of a certain style of music.
Questlove, famed drummer of the Roots, may have the smartest take on the controversy: “Look, technically it’s not plagiarized. It’s not the same chord progression. It’s a feeling. Because there’s a cowbell in it and a fender Rhodes as the main instrumentation — that still doesn’t make it plagiarized. We all know its derivative. That’s how Pharrell works. Everything that Pharrell produces is derivative of another song — but it’s a homage.”
That sort of homage is, in large part, just how music works. Even though Thicke’s music is obviously profoundly influenced by Gaye’s, Gaye himself was influenced by Ray Charles, Frank Sinatra and old doo-wop groups like The Capris. Gaye cited the Capris’ song “God Only Knows” as “critical to his musical awakening,” similar to how Thicke cited “Got to Give It Up” as one of his favorite songs. All music is derivative to some degree and can exhibit similar elements without necessarily infringing on copyright. Although “Blurred Lines” does share a similar feel with “Got to Give It Up,” copyright law does not allow for sole ownership of elements that are common to a broader style.
Put simply, Marvin Gaye probably wasn’t the first to pair a funky bass line with a cowbell, nor will Robin Thicke be the last. While “Blurred Lines” embodies a groove that Gaye exemplified, it is not one that Gaye owned, and certainly not one that Thicke plagiarized. Copyright law does not stand in the way of musicians who use and reuse aspects held in common by a genre to write new music, so long as they do not infringe on the rights of others by taking what is the unique intellectual property of another. Popular music has a long history of appropriating elements of old songs to create new ones; it’s what allows music to evolve, from the Capris to Marvin Gaye to Robin Thicke and all those that will come after.