Evidence may provide hook in copyright lawsuit over ‘Blurred Lines’

January 9, 2015

Robin ThickeThe admission of evidence is a crucial issue in all areas of litigation, but it can be especially important when a case involves a complex area of law such as intellectual property.

Pretrial disputes over what evidence should be presented to the jury can get extremely technical and heated, as it has in the copyright infringement case involving some well-known musicians of then and now.

In the lawsuit, the family of the late Marvin Gaye alleges that Pharrell Williams and Robin Thicke’s 2013 chart-topper “Blurred Lines” was a rip-off of Gaye’s 1977 megahit “Got to Give It Up.” Thicke was the singer of “Blurred Lines” while Williams produced it. Both are credited with writing the song.

Summary judgment on behalf of Williams and Thicke was denied in late October when a federal district court judge in California ruled that Gaye’s family “made a sufficient showing that elements of ‘Blurred Lines’ may be substantially similar to protected, original elements of “Got to Give It Up.”

Attorneys for both sides are now fiercely preparing for the February 10 trial, and what evidence the jury will hear is a major source of contention.

The Gaye family is fighting for the jury to hear recordings of the two songs at issue and comparison mash-ups along with the admission of a notorious deposition given in the case by Robin Thicke, which attorneys for Williams and Thicke say are all prejudicial. The parties are also having the typical dispute over each other’s expert witnesses.

Here is a brief analysis of each type of evidence that is in question, which was largely adapted from this informative article from Billboard:

Recordings of the songs. Gaye’s family wants the jury to hear sound recordings of “Got to Give It Up” and “Blurred Lines” to draw their own comparisons. However, attorneys for Williams and Thicke may be able to prevent that from happening based on a technicality stemming from the old 1909 Copyright Act.

When summary judgment was denied in the case, the judge found that the Gaye family did not sufficiently show that the “Got to Give It Up” copyright included “material other than that reflected in the lead sheets deposited with the Copyright Office.”

Additionally, attorneys for Williams and Thicke are arguing that having the jury listen to the songs would be confusing, misleading and “unduly prejudicial” because “numerous elements in the sound recordings…. are not found in the Deposit Copy and hence are not probative of copying.”

In other words, they say the lead sheets registered with the Copyright Office are protected, but not the actual recorded song. Attorneys for Williams and Thicke say that if the jury is unable to read sheet music “composition can be fully played on a keyboard.”

Mash-ups. Gaye’s family also wants to present the jury with an audio “mash-up” that was created by audio engineers comparing the two songs and displaying their similarities. Williams’ attorney argues that the mash-up is prejudicial and “the musicological equivalent of junk science.”

According to Billboard, attorneys for Williams and Thicke have also created mash-ups attempting to show that there are a variety of songs from the genre that sounds similar but have not been considered copyright infringement. Of course, attorneys for the Gayes don’t want this evidence admitted.

Thicke’s deposition. In a deposition early on in the case that was made public by The Hollywood Reporter, California native Robin Thicke stated that he was drunk and on drugs when “Blurred Lines” was created and took credit for the song even though it was Williams who wrote it. He also told the press that he was influenced by Gaye.

The Gayes hope to use the deposition to call Thicke’s credibility into question. Thicke’s attorney is arguing that the deposition and statements to the press are irrelevant and prejudicial.

Expert witnesses. In one example, attorneys for Williams and Thicke want music company executives to testify as to why they determined that “Blurred Lines” did not violate Gaye’s copyrights, including the findings made by the musicologists they hired to reach this determination.

Gaye’s family attempted to sue the music publisher EMI for breaching its fiduciary duties but the claim was settled. Gaye’s family charges that the jury should not hear testimony from EMI executives because it would be prejudicial and EMI has a conflict of interest as it owns rights to both songs.

As you can see, there is much more to the case than two songs that admittedly sound similar. Even so, you can have a listen for yourself to “Blurred Lines” here and “Got to Give It Up” here. There is even a YouTube video that compares snippets from the two songs here.