​ 

 

​Complaining Works

​Defending Work

Marvin Gaye

"Got to Give it Up"

Hear Recording

---

George Clinton, et al.

"Sexy Ways"

Hear Recording

 

Robin Thicke, et al.

"Blurred Lines"

Hear Recording

 

 

 

 

Plaintiffs' Complaint for Declaratory Relief: pdf copy

Defendants' Counterclaim: pdf copy

Copyright Registration for "Got to Give it Up" pdf copy

Plaintiffs' Motion to Exclude Gaye's sound recording pdf copy

Transcript of videotaped deposition of Gayes' music expert Judith Finell  pdf copy

Defendants' Motion for Prejudgment Interest pdf copy

Plaintiffs' Motion for Judgment as a Matter of Law pdf copy

Third appeal brief of Pharrell Williams, et al. (April 2017) pdf copy

 

Comment by Charles Cronin

In their counterclaim to Pharrell William’s complaint for declaratory relief, defendants Frankie Gaye, et al. attempt to head off the obvious fact that the disputed works are merely stylistically similar, by claiming that “[t]he substantial similarities [in both] are the result of many of the same deliberate creative choices made by their respective composers.” Adding a bit of impressive quantitative hot air:  “Many of the main vocal and instrumental themes of ‘Blurred Lines’ are rooted in [what does that mean?] “Got to Give it Up”; namely, the signature phrase, vocal hook, backup vocal hook, their variations, and the keyboard and bass lines.”  But clinching the matter is the assertion that both songs “…shared departures from convention [what convention?] such as the unusual cowbell instrumentation [!], omission of guitar, and use of male falsetto.” 

The claimants' (Gaye's heirs) error – an increasingly common one fostered by opportunistic attorneys seeking payoffs by harassing financially successful pop stars – lies in the fact that Gaye’s number, its “signature phrase, vocal hook, backup…” contains virtually no copyrightable expression to begin with. The notated rendering of Gaye's song that was used as the copyright registration deposit copy (see PDF file above) was obviously created not by Marvin Gaye, but by a literate musician who transcribed the sounds of Gaye's recorded performance of "Got to Give it Up."   The result is a tortuous document that attempts to render an essentially improvised work of sound using the straitjacket of symbolic music notation (note the extravagant number of tied notes used to try to wrest some semblance of musical meaning out of Gaye's free-form vocal line).  The fact that people associate a certain sound or style with Marvin Gaye doesn’t indicate that that sound or style is his copyrighted expression; it simply means that his use of it was broadly disseminated among the public (like Jackie Kennedy’s hair flip from the 1960s that countless women and drag queens have imitated without allegations of infringement for decades).       

What to make of the complaint for declaratory relief, and the plaintiffs’ opening remarks about their “utmost respect for and admiration of Marvin Gaye, Funkadelic and their musical legacies…”?  The only reason for such a gratuitous statement would appear to be the fact that Marvin Gaye was black, and Robin Thicke, the featured performer in “Blurred Lines,” is white.  Because Thicke’s financial success hinges significantly upon his seeming rapport with black rappers, it is essential that the public perception of such a rapport not be compromised by any suggestion that the performer is a carpetbagger.  

Thicke’s popularity among whites – particularly the economic jackpot of young white men – depends upon his handlers’ cultivated selling of him as being assimilated into black male culture – demonstrating the misogyny, satyriasis, and criminality that many white men project onto their black counterparts, which provide the likes of Thicke, Justin Timberlake, and Justin Bieber a bogus aura of street cred that flatters their gullible middle class white audiences while simultaneously perpetuating offensive stereotypes of black men.

In March 2015 a jury in a district court in Los Angeles determined that Robin Thicke and Pharrell Williams had infringed Gaye's work, and awarded Gaye's heirs $7.4 million. Judge John Kronstadt's reluctance to discard the jury verdict is an embarrassment to his court and legacy.   Preposterous outcomes like this justify Europeans’ skepticism towards U.S.’s law provision of a right to a jury trial in such disputes.  There is no legal or factual justification for the verdict; the jurors simply subscribed to the Gayes' attorney's portrayal of Thicke and Williams as drug-addled liars.  Thicke's documented "pharmaceutical heroics"* (likely phony, but intended to burnish a raffish image) and images of naked women dancing around Williams and Thicke on the video by which the song was marketed undoubtedly alienated jurors confronting Gaye's heirs -- aggrieved women, in funereal garb. Had Marvin Gaye himself (“pharmaceutical heroics” – genuine!) been the claimant in this dispute this indefensible verdict would have been far less likely.

On 1 May 2015 Williams et al. filed a motion (PDF file above) seeking the court to discard the jury's verdict, accurately describing it as"unfounded, illogical, and a miscarriage of justice." The Motion deals at length with the testimony of the Gaye's musical expert, Judith Finell (PDF file above of transcript of Finell deposition) that plaintiffs claim was based on a comparison of the sound recordings of the works, and not the rudimentary primary musical information they contain as revealed in the graphical representations of the works.  As the court recognized, the Gayes' property interest in "Got to Give it Up" is limited to this minimal musical information. 

In their third brief on appeal (April 2017, linked above) Williams et al. argue that the district court's denial of their request for summary judgment was legally erroneous because it was based upon impermissible evidence relating to unprotected stylistic aspects of Gaye's song.

-----

* Borrowed from Robert Pattison's brilliant The Triumph of Vulgarity: Rock Music in the Mirror of Romanticism, 1987,

-----

Pavel Karnaukhov, a musician and software developer in Kiev, has developed an app, known as Melody Composer Squared, that creates graphical representations of melodic lines. Linked here are visualizations of the two melodies at issue in this dispute: "Got to Give it Up";"Blurred Lines".

 

 

[Back to Top]