ABSTRACT
In March 2013, Pharrell Williams and Robin Thicke released one of the best-selling singles of all time, ‘Blurred Lines’. In April 2014, the family of late soul singer Marvin Gaye sent a demand notice to Williams and Thicke alleging that ‘Blurred Lines’ infringed on Gaye’s 1977 funk tune ‘Got to Give It Up’. In a declaratory judgement action, a jury found Williams and Thicke to be liable of unlawfully copying ‘Got to Give It Up’ and ordered one of the largest pay-outs in music-copyright history, which was affirmed on appeal. The crux of this verdict rested on expert witness analysis of the harmony, melody, rhythm, and structure of ‘Blurred Lines’ and ‘Got to Give It Up’. Although the expert witnesses analyzed the same musical elements, each expert applied highly subjective and differing methods, leaving legal experts and artists in fear that the verdict in Williams v Gaye set a dangerous precedent. This article proposes a music-theory based method as a uniform basis of analysis that would aid expert witness testimony in establishing actual copying by showing substantial similarity between musical works. The Proposed Method suggests Counterpoint Rules to be used as a tool in analyzing musical structure in a way that incorporates melody, rhythm, and harmony. This method is designed to provide a more objective way of determining the extent of similarities for purposes of the probative similarity part of the actual copying analysis.
Rachael Belensz, A Proposal for A More Objective Method in Determining the Extent of Similarities Between Musical Works for the Purpose of Probative Copying, 20 UIC Review of Intellectual Property Law 251 (2021).
First posted 2021-04-24 15:30:39
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