Updated: Should Robin Thicke Be Liable For Subconsciously Copying Marvin Gaye?

Written by Nerissa Staggers
Pharrell, Thicke, TI - allhiphop

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By now, you should have heard of Robin Thicke’s song, “Blurred Lines”.  It’s topped the Billboard charts at No. 1 for 11 weeks straight this summer, breaking the record for the longest No. 1 on Billboard’s R&B/Hip Hop charts.  Listen closely and you’ll hear that the song is reminiscent of the 70s soul vibes in Marvin Gaye’s “Got to Give It Up” and the Funkadelics “Sexy Ways”.  Now that the song has been widely successful, Thicke’s camp took some preventive measures to protect it from any copyright infringement claims.  Collectively, Robin Thicke, Pharrell Williams, and Clifford Harris (T.I) filed a pre-emptive action, requesting that the court declare that the song was not a copy of the defendant’s songs.  Instead, they claim that they merely made the song to evoke an era, without copying anyone else’s music.  Other than the commonplace musical elements, the song was the product of independent creation.

Thicke’s camp offered to settle with Gaye’s family, which was denied.  Instead, the Gaye’s countersued adding “Love After War” to the suit, claiming it was infringing on Marvin Gaye’s track “After the Dance”.  In a recent interview with TMZ, Marvin Gaye III complained that Thicke not only copied the song, but his music feels and sounds the same as Marvin Gaye’s.  He claimed that “Thicke is making a career off of Marvin Gaye” based on the similarities of his music.  The Gaye’s pose legitimate concerns, but can Robin Thicke be found liable for copyright infringement?  Although the law is sort of “blurry” in this area, the answer is yes.  The better question is Should he be found liable for copyright infringement under the current laws?

Under the U.S. Copyright Act, in order to be found liable for copyright infringement the plaintiff must show that the defendant copied the work directly or circumstantially, or show that the plaintiff had access to the defendant’s work.  The court imposed a subconscious copying standard applicable to copyright infringement cases in music.  The term implied that even though there was no direct copying, a person can still be held liable.  It means that if a person has heard a song, stored it into his memory, and unintentionally used it in his musical composition, he is liable.

Even if a person claims to have never heard a song before, if his song is identical to another’s he can be held liable.  The court upheld this standard in a case between the Isley Brothers and Michael Bolton.  In that case, Bolton produced a song with an identical hook as the Isley’s rendition.  Bolton claimed that he never heard that song before.  In fact, the song did not become available on compact disc until after Bolton’s song was released.  The court still held Bolton liable for infringement.  It ruled that although it was not available for sale, the song was played on the radio in the early 70s when Bolton was 10 or 11 years old.  Because it was played he must have heard it at some point.  Along with other circumstantial events, the judgment was partially based on the fact that Bolton testified that he was a huge fan of the Isley Brothers and was heavily influenced by their music.

The subconscious copying standard as it relates to music infringement cases may be a bit too broad.  It states that copying is copying, whether it was intentionally or innocently done.  This may be true for any other form of artistry except for music. Finding direct evidence of copying is rare, and the showing of access used for musical copyright infringement cases is weak.  How can someone avoid music infringement when the standard is so broad?

The court ignores how the human mind interacts with the world and processes past creations.  Music has unique qualities separate from any other art form because it is heard and not visually perceived.  Studies show that bits and pieces of different musical elements are stored in different parts of the brain.  A person only retrieves the sound later once it’s connected to a memory and one was conscious of the sound at the time.  But there is no telling that one was consciously aware of the sound when he heard it.  There’s really no way to predict what information is retrieved from our memory or not.

In the Gaye versus Thicke case, an argument could be made that the song was created independently without outside influences.  When one creates, often times he may not even be aware of what started the process or what outside elements may have been considered or integrated into their own creations. All he knows is that the music sounds good and fits within his personal musical tastes and within a particular genre. Musical tastes are derived from cultural, and external influences. The sound evokes certain emotions and creates a connection with the artist. The artist then brings their own perspective, experiences, and energy to a record making it uniquely theirs.

The argument here is not necessarily to defend Robin Thicke and his sound, but to make a point that such a strict liability standard, like subconscious copying, may be punishing innocent musicians. While we’re encouraging creativity, we have to be mindful of where our creative instincts come from. The subconscious copying standard is a ‘catch-all’ provision that essentially punishes every instance of where a song sounds similar to another. This may discourage artists to create in fear of potential infringement suits,  and in turn suppress their musical expressions. Therefore, Should Robin Thicke be found liable for copyright infringement?  Not based on this standard. I believe that the subconscious copying standard is inherently flawed.

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Update: March 10, 2015

After many months of legal drama, the jury has decided that Robin Thicke and Pharrell Williams must pay Marvin Gaye’s estate $7.3 million for copyright infringement. via The Verge

About the author

Nerissa Staggers

Nerissa Staggers is the Founder and Editor-In-Chief of A graduate of Temple University, Fox School of Business, and Texas Southern University, Thurgood Marshall School of Law, Nerissa Staggers is an analytical thinker and an appreciator of the arts. She’s worked in the fashion industry for several years in New York City prior to obtaining her law degree, taking on buying, production, and management roles. Her interests expand beyond just fashion to entertainment, media, and entrepreneurship. She loves the idea of linking the worlds of creativity, business, and law. Intellectual Property law is that link. She completed intellectual property coursework at New York Law School as a visiting student to further concentrate on this area. The purpose of this site is to support artists and small businesses by helping to protect their creative interests. Outside of work, Nerissa enjoys volunteering and serving on non-profit boards in her local community.

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