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Why Did Robin Thicke File A Lawsuit Over Blurred Lines?

· August 20, 2013

It’s pretty much gone viral that Robin Thicke has “reluctantly” filed a lawsuit over his hit “Blurred Lines” (also known as the Song of the Summer of the Century), because it sounds similar to certain songs from the funk era.  This has created some confusion.  Why would Thicke sue if he is the alleged infringer?  Shouldn’t it be the other way around?  Robin Thicke, Pharrell Williams, and Clifford Harris Jr. have brought a declaratory judgment against (1) Marvin Gaye’s descendants, who own Gaye’s copyrights, including the work at issue “Got to Give It Up,” and (2) Bridgeport Music, Inc., who purports to own some of Funkadelic’s copyrights, and who has separately claimed Thicke’s song infringes a work by Funkadelic, “Sexy Ways.”  Thicke et al. are the plaintiffs, but they have brought suit to avoid later being a defendant.  One can initiate a declaratory judgment case where there is a “substantial controversy” of “sufficient immediacy” between parties.  This standard appears to be satisfied, according to the complaint, which states:  “Representatives of Bridgeport have recently notified plaintiffs that, if plaintiffs do not pay a monetary settlement of Bridgeport’s claim, Bridgeport intends to initiate litigation for copyright infringement against plaintiffs and others.”

But wait, why would you bring suit if you’re not positive you’re going to be sued?  To be in a court you like.  A declaratory judgment is basically a preemptive strike.  You know an attack is coming, and you have more control over the litigation if you just bring it first.  Bridgeport, you may remember from my post on Vine, is a notoriously aggressive copyright plaintiff that has produced some very pro-rights-holder precedent in the Sixth Circuit.  (The complaint straight up accuses Bridgeport of copyright trolling, saying they are “in the business of acquiring and exploiting copyright interests in musical compositions, and in the business of trolling for opportunities to threaten to sue and to sue musicians, performers, producers and others in the music industry for infringement of its copyrights.”)  If Thicke hadn’t brought this declaratory judgment in California, he could have been sued by Bridgeport in the Sixth Circuit.  Bridgeport’s previous legal victories (see, e.g., [1], [2], [3]) demonstrate that circuit’s tendency to side with rights-holders.

If you’ve listened to these songs, you can hear that Blurred Lines has been influenced by his predecessors’ works, something Robin Thicke acknowledged in a May GQ interview.  But is that copyright infringement?

Copyright infringement is established by proving (1) the plaintiff owns a valid copyright, (2) the defendant actually copied the work, and (3) the level of copying amounts to an improper appropriation.  The first prong appears to be satisfied by the facts in the complaint.  The second prong could be satisfied by indirect evidence of copying, due to apparent access and the similarity of the songs, or perhaps even direct evidence, due to Thicke’s admission to GQ.  Thicke may escape liability under the third prong if it is not determined that the alleged taking was impermissible as to both kind and amount.  It must be demonstrated that the intended audience for the works at issue would find “substantial similarity” between Thicke’s work and protected expression in rights-holders’ works.

An alleged infringer may attempt to take advantage of the following related doctrines and principles which limit copyrightability (with links to relevant judicial precedents):

(1) Idea/expression dichotomy (see, e.g., Feist Publications, Inc. v. Rural Telephone Service Co.):  The idea/expression dichotomy says copyright protects the expression of an idea, not the idea itself.  The Supreme Court in Feist stated that “[t]he most fundamental axiom of copyright law is that ‘[n]o author may copyright his ideas[.]’”

(2) Merger doctrine (see, e.g., Kregos v. Associated Press):  This is the related principle that, when there are a limited number of ways of expressing an idea, none of those expressions can be protected by copyright, otherwise the rights-holder would have a potential monopoly on the underlying idea, as no one could develop another expression of the idea that would differ sufficiently from the protected expression.

(3) Scènes à faire (see, e.g., Walker v. Time Life Films):  This is another related doctrine that recognizes that certain elements of a work are not protected by copyright when they are mandated by or customary to the genre, and so fundamental that they should not be owned.

Thicke alludes to these doctrines in the complaint:  “Being reminiscent of a ‘sound’ is not copyright infringement. The intent in producing ‘Blurred Lines’ was to evoke an era. In reality, the Gaye defendants are claiming ownership of an entire genre, as opposed to a specific work, and Bridgeport is claiming the same work.”  He may be intending to raise some of these doctrines at trial.

Some other doctrines that are often raised, but may be less relevant here, include:

(4) De minimis (see, e.g.Ringgold v. Black Entertainment Television):  This is a defense that says that the amount that was taken was so limited and insignificant that it was trivial and not actionable.  This defense notably failed against Bridgeport in the 6th Circuit, but this case is in the jurisdiction of the 9th Circuit.  It does not seem like this doctrine would be likely to be raised in this case.

(5) Fair use (see, e.g., Campbell v. Acuff-Rose):  If copyright is found to be infringed, an argument could be made that the use was a fair use and transformative.  Mashup artists like Girl Talk assert that they are protected under the fair use doctrine, but non-parody fair use decisions in the music realm appear to be rare.

I’m not making any predictions about how a court would rule in this case.  And I’m not making a joke about how the lines are blurry.

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