6th Edition: Trends in Marketing Communications Law
Just when you thought it was over, another copyright infringement lawsuit involving a Marvin Gaye song is set for trial. The dust had barely settled on the infamous “Blurred Lines” case when a second suit, this time targeting world-famous pop star Ed Sheeran, took another step closer to trial. Similar to the prior case, the battleground being fought over is the “feel” and “style” of the song — elements that were long presumed to be unprotectable from a copyright standpoint. These recent developments have found many artists and content creators — including marketers and their agencies — concerned that musical ground long considered “safe” may now be off-limits.
The suit against Sheeran claims that his hit “Thinking Out Loud” infringes Gaye’s classic “Let’s Get It On.” In January 2019, a court ruled that there were enough similarities between the two songs for the case to proceed to a jury trial. The ruling came less than a month after Robin Thicke and Pharrell Williams were ordered to pay Gaye’s estate $4.9 million as the final step in a years-long saga that reached its crescendo when a jury found “Blurred Lines,” the worldwide hit written by Thicke and Williams, had infringed Gaye’s “Got to Give it Up.”
As in the “Blurred Lines” case, it will be up to a jury to decide if the similarities between “Thinking Out Loud” and “Let’s Get It On” constitute infringement. The most hotly contested issues at trial will again likely involve what elements of the songs may be compared for purposes of determining infringement. The analysis of whether a song has infringed the copyright in another song has long focused on whether any of the lyrics, melodies, harmonies or similar elements had been copied. Stylistic similarities such as similar drums, tempo, instrumentation and other stylistic factors that are used to create a certain vibe or feel were not typically considered sufficiently original to warrant protection. The “Blurred Lines” case seemed to represent a shift in those long-held presumptions. If the judge in the “Thinking Out Loud” case determines that elements such as percussion and “aesthetic appeal” may also be considered, the landscape will be altered even further.
Another common element in both of the Marvin Gaye cases is that Sheeran, like Williams before him, made a high-profile, public connection between his song and the Gaye song at issue. Williams, in an interview, had specifically credited “Got to Give it Up” as the inspiration behind “Blurred Lines.” Sheeran took it one step further by transitioning directly from “Thinking Out Loud” into “Let’s Get It On” at a live performance, making the connection undeniable. The judge cited footage of the performance as something with which the jury might be “impressed.”
For content creators, the unsettled landscape in copyright protection may mean additional risk when commissioning new music. Using a new musical work that was “inspired” by the “style” of an underlying source and which shares similar elements may no longer be as safe as it once was. A careful analysis of all of the factors — musical, stylistic and the overall sound and feel — will be more important than ever.
- Two recent high-profile copyright infringement cases involving Marvin Gaye songs may end up expanding the boundaries of copyright protection. Elements such as the “style” or “feel” of a song, which were long-presumed to be “safe” to copy, may now qualify for copyright protection.
- Owners of original music that serve as the source of inspiration for the “feel” or “vibe” of newly created musical works may be emboldened to take legal action.
- Marketers and their agencies should exercise caution when commissioning original musical works in the same “style” or “feel” as pre-existing music and when publicly discussing the source of the musical inspiration.