Musical Works Entitlement to Broad Copyright Protection May Stifle Creation

Jun 6 2018
Category: News

In the much talked about decision in Williams v. Gaye, the focus was on whether Marvin Gaye’s 1976 hit, “Got to Give it Up” was infringed upon by the Robin Thicke and Pharrell Williams’ 2013 worldwide number one hit, “Blurred Lines.” In this case, the U.S. Court of Appeals for the Ninth Circuit upheld the jury’s determination of copyright infringement and that the song infringed upon Gaye’s rights.

The outcome of the case hinged upon the court’s determination that Gaye’s work is entitled to “broad” (and not “thin”) protection. A work that is only entitled to thin protection is infringed upon only when the other work involved is “virtually identical” to it. On the flip side, for works that are entitled to broad protection, the plaintiff only needs to prove that the works are of “substantial similarity,” making it a much easier burden to prove.

But What Exactly is the Difference Between Broad and Thin Protection?

It’s not always so easy to determine the extent to which a work is entitled to protection. A copyright protects expressions and not ideas. It is with this in mind that a court determines whether a work can claim broad or thin protection; the copyright is a protection concerning the “range of expression” that is available to the creator for his or her work. This is a difficult determination made by the court on a case-by-case basis through the examination and analysis of all of the facts.

The Scope of Protection for Musical Works

In the case of Williams v. Gaye, the majority held that in general, musical works are entitled to a broad range of copyright protection, because music “is not capable of ready classification into only five or six constituent elements, but is instead comprised of a large array of elements, some combination of which is protectable by copyright.” The dissent argued for judgment as a matter of law because there are only a limited number of original combinations of music that are capable of legal copyright protection. Musical works are considered to be expressed through the elements of melody, harmony, and rhythm.

The plaintiff presented several factors regarding their claim for which the majority agreed:

A 10-note melodic sequence in the beginning of Gaye’s song was also present in “Blurred Lines;”
The “hook phrase” (the four melodic pitches) in Gaye’s song appeared to be featured twice in that of Thicke’s; and
Gaye’s lyrics and Word Painting (a technique in which the music itself is used to illustrate the lyrics, such as singing the word “higher” at a higher pitch) were similar.

Through these detailed arguments, the court highlighted many of the similarities regarding the sequence of pitches in succession (melody), the groups of pitches played simultaneously (harmony), the repetitive patterns of the notes (rhythm), the speed at which the song is played (tempo), and volume of the sound (dynamics). Through this assessment it concluded that “Blurred Lines” had indeed infringed upon Gaye’s “Got to Give it Up.”

What Could this Mean for the Future of Music?

The precedent that music is generally entitled to a broad copyright protection can have many effects on the future of the industry. When someone creates a musical work, it is extremely reasonable that no one else benefits from copying it. However, with the finding of broad protection, the court must only find “substantial similarity.” This potentially subjective ruling would prevent songs such as “Blurred Lines” from ever being created. With so many components going into a musical composition, it can prove difficult for the writer(s) to steer clear of all other components of songs. Each artist, whether singer, dancer, author, or actor, gains influence from what they hear and see. It will be interesting to see how this ruling will limit or otherwise affect creators moving forward.