Last Thursday, R&B star Robin Thicke, along with fellow artists Pharrell Williams and Clifford “T.I.” Harris, filed a suit for declaratory judgment in the U.S. District Court for the Central District of California against Marvin Gaye’s family and Bridgeport Music Inc. after receiving demand letters alleging copyright infringement and threatening suit.  Gaye’s family and Bridgeport Music Inc. allege that Thicke’s summer hit song “Blurred Lines” infringes on Gaye’s 1977 song “Got to Give It Up” and Funkadelic’s 1974 song “Sexy Ways.” Thicke, Williams, and Harris have decided to fight out the dispute in federal court.  They have asked the judge to declare that their song “Blurred Lines” does not infringe on the defendants’ claimed rights, and that the defendants do not have standing to pursue copyright infringement claims against them.

Since this case was filed in California federal court, the Ninth Circuit’s standard for copyright infringement applies. In the Ninth Circuit, to demonstrate copyright infringement, Gaye’s family and Bridgeport Music must demonstrate: (1) ownership of a valid copyright in the songs; and (2) unauthorized copying of those songs. The second prong requires a showing that Thicke, Williams, and Harris had access to the copyrighted songs, and that the respective songs are “substantially similar.”   Under the second prong, substantial similarity requires that the allegedly infringing work (i.e., “Blurred Lines”) is both objectively and subjectively similar to the copyrighted works (i.e., “Got to Give It Up” and “Sexy Ways”) – meaning substantial similarity of the general ideas (“extrinsic test”) and the protectable expression of those ideas (“intrinsic test”), which must be more than trivial or de minimis.  Accordingly, if either test fails, the copyright claim fails.

In this case, the first prong should not be difficult to prove – copyright registrations confer presumptive ownership of rights. However, the second prong, which is the center of most copyright infringement suits, will likely be the most disputed issue.  While it is not uncommon for music artists to sample and/or create a sound or feel that is reminiscent of prior songs or other artists, this dispute shows that imitation may not be the sincerest form of flattery.  Let’s see how the case unravels.