“Blurred Lines” Copyright Infringement, Marvin Gaye, Patent Preemption and a New Frontier in Copyright Litigation
Pharrell Williams v. Bridgeport sent shock waves across the music industry; Supreme Court decisions in patent eligibility cases may shed light on copyright eligibility of layers of sounds in copyrighted works
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- After non-copyrightable elements are stripped away, the “layers” that remain in the recording are the chords, rhythm and vibe that the vast majority of pop musicians rely upon
- Raises the question: are these “layers” in the Marvin Gaye copyright deposit in fact a “building block” of human artistry (referred to as human ingenuity by the Supreme Court in Alice v. CLS Bank patent decision)
- If so, copyrighted “layers” of signature phrases, hooks, bass lines, keyboard chords, harmonic structures and vocal melodies may risk tying up the use of underlying “building blocks” and thus not be copyright eligible
- These copyrighted “layers” may also be considered insignificant, extra-solution activity according to Supreme Court patent guidance in Alice v. CLS Bank and thus not copyright eligible
The “Blurred Lines” copyright infringement case, decided March 10, 2015 by a California federal jury, is Pharrell Williams et al. v. Bridgeport Music, Civil Action No. LA CV13-06004, (C.D. Cal. 2015), filed by Robin Thicke and Pharrell Williams (plaintiffs) seeking a declaratory judgment of non-infringement versus Marvin Gaye’s family (defendants). As a civil case decided by a jury, there is limited judicial commentary to help interpret the meaning of this case.
The jury found that Robin Thicke and Pharrell Williams copied the Marvin Gaye 1977 classic song “Got to Give It Up” in their 2013 pop hit “Blurred Lines” and awarded $4 million in damages and $3.38 million in lost revenue. See Special Verdict (Dct 320).
A Confounding Case to Unravel
Confounding the matter, “Got to Give It Up” was created and registered prior to the effective date of the 1976 Copyright Act. After 1976, distributed recordings amounted to a publishing of a composition and so were protected copyrights. Not so under the prior 1909 Act, which required recordings or distributed recordings to be either (a) published with proper notices, or (b) unpublished and deposited with the Copyright Office. See Order re Motion for Summary Judgment (Dkt 139) (“MSJ”) and Order re Admissibility of Sound Recording Evidence at Trial (Dkt 231) (“Admissibility Order”).
“Got to Give It Up,” recorded before the 1976 Act, failed to meet the requirements for a publication and so only lead sheets (namely, the simple score containing the melody, lyrics, and chord symbols) that were deposited with the Copyright Office provided any copyright protection on the piece of music. Id.
The question for the jury was: did the 2013 pop hit “Blurred Lines” infringe the following specific limited elements in the deposited sheet music: (a) signature phrases (e.g., in “Blurred Lines” “and that’s why I’m gon’ take a good girl” and in “Got to Give It Up” “I used to go out to parties”, (b) hooks like,
(c) bass lines and (d) harmonic structures like,
(e) keyboard chords, (i.e., chords with similar pitches played to a rhythm in which “the keyboard stops playing on beat 4, creating a rhythmic suspension until the following bar” which in “Got to Give It Up” is an A7 chord, and consists of the pitches A, C#, E, and G and in “Blurred Lines” is an A chord, and consists of the pitches A, C#, and E (i.e., it is an A7 chord with the G omitted), and (f) vocal melodies, elements of the musical composition. Id.
The following elements not found in the deposited sheet music and so not copyright protected were to be ignored by the jury: (i) the hooks with backup vocals, (ii) the “Theme X” (“Dancin lady” in “Give it Up”), (iii) the backup vocals, (iv) the descending bass line, (v) the keyboard parts (as opposed to the chords themselves), (vi) the percussion choices, (vii) the falsetto in the vocal parts, (viii) the use of party noises as accompanying sound, and (ix) the guitar from the instrumental scoring. Id.
Confounding the matter even more was that the sound recording of “Got to Give It Up” was not admissible at trial since the sound recording was not copyright protected. At the same time, the court found that the defendants would be unable to present their case if the sound recordings were inadmissible in their entirety. Hence, the jury was allowed to hear limited portions of the Marvin Gaye sound recordings that substantially reflected the subject matter of the copyright deposit (i.e., those parts of the recordings that were documented in the lead sheets). See Order re Admissibility of Sound Recording Evidence at Trial (Dkt 231).
To avoid prejudice to plaintiffs, the jury was permitted to hear a version of the recording that was edited to remove the following unprotected elements not in the copyright deposit: backup vocals, percussion parts, the use of party noises as accompanying sound, and the distinctive sound of Marvin Gaye’s voice (such as emphasis, shading, tone of voice, inflection, and timing of a vocal rendition). In addition, the length of the edited recordings was limited to further avoid prejudice. Id.
Are Marvin Gaye’s “Layers” Of Music No More Than Copyright Ineligible “Building Blocks” Of Art Not Unlike Patent Ineligible “Building Blocks” of Invention As Defined in Alice v. CLS Bank?
In a May 2008 interview in Uncut Magazine, legendary guitarist and Led Zeppelin founder Jimmy Page elaborated on the “layers” of sounds that constitute a musical composition: “On ‘Levee Breaks’ you’ve got backwards harmonica, backwards echo, phasing, and there’s also flanging; and at the end, you get this super-dense sound, in layers, that’s all built around the drum track. And you’ve got Robert, constant in the middle, and everything starts to spiral around him. It’s all done with panning.”
To simplify the copyright infringement analysis in the Marvin Gaye case, it may be easier to look at the elements of a copyrighted piece of music as “layers” of sounds as Jimmy Page describes them. In “Got to Give It Up,” the layers of sound that were protected by copyright included a bass introduction, chords, and the melody line, along with the lyrics. The layers of sounds that were excluded from copyright protection included backup vocals, percussion parts, party noises as accompanying sound, and the distinctive sound of Marvin Gaye’s voice (such as emphasis, shading, tone of voice, inflection, and timing of a vocal rendition).
These copyright protected layers of sound in the Marvin Gaye case are akin to recited limitations found in a patent claim. Both define the metes and bounds of the protection (i.e., of the copyrighted work or the patented invention, as the case may be.) If the layers of sounds in “Blurred Lines” are substantially similar to the layers of sounds that are protected by the Marvin Gaye copyright, there is infringement.
And the parallels between patents and copyrights on this point don’t end there. There is a parallel between what subject matter is patent eligible and what subject matter is copyright eligible. The patent eligibility of recited limitations in patent claims is governed by 35 U.S.C. §101 which provides that “[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” The copyright eligibility of layers of sounds in copyrighted works is governed by 17 U.S.C. §102 which provides, among other things, that “[i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” Just like something that is not “new and useful” is not eligible for patent, so too something that is “any idea, concept, or principle” cannot be eligible for copyright. An abstract idea can be neither patented nor copyrighted, for example.
Given these parallels, recent major cases decided by the U.S. Supreme Court on the patent eligibility of recited limitations in patent claims may shed some light on how the Court may view the copyright eligibility of layers of sounds in copyrighted works in this or other copyright case.
In Alice Corp. v. CLS Bank Intl., decided June 2014, the Supreme Court affirmed the per curium Federal Circuit analysis under Mayo in striking down four software patents under § 101 as patent ineligible. Read Alice v. CLS Bank blog.
In applying the §101 exception, the Supreme Court explained that “we must distinguish between patents that claim the “‘buildin[g] block[s]’ ” of human ingenuity and those that integrate the building blocks into something more, Mayo, 566 U. S., at (slip op., at 20), thereby “transform[ing]” them into a patent-eligible invention, id., at (slip op., at 3). The former “would risk disproportionately tying up the use of the underlying” ideas, id., at (slip op., at 4), and are therefore ineligible for patent protection. The latter pose no comparable risk of preemption, and therefore remain eligible for the monopoly granted under our patent laws.
Just as “building blocks” of human ingenuity are not subject matter eligible for patent, so too, “building blocks” of creative artistry should not be subject matter eligible for copyright protection under 17 U.S.C. §102(b) because they amount to an idea, concept, or principle.
Perhaps the question in the Marvin Gaye case should have been whether, once the non-protected layers of sound were stripped away from the Marvin Gaye recording, are the remaining layers of sounds “building blocks” of creative artistry and so not eligible for copyright protection?
The music industry seems to think so since the rhythm and vibe of the chords played in the way and at a speed as in “Got to Give It Up” is a rhythm and vibe that a vast segment of pop musicians appear to rely upon in writing their own music.
We may never know the answer to this question in the Marvin Gaye case. This issue does not appear to have been raised at the trial level. But posing this question in future copyright cases may provide answers to how courts should deal with layers of music that serve as “building blocks” of creative artistry.