Blurred Justice

Forthcoming 38 Loyola of Los Angeles Entertainment Law Review (2018)

65 Pages Posted: 4 Oct 2017  

Allen Madison

University of South Dakota Law School

Paul Lombardi

University of South Dakota - Department of Music

Date Written: September 27, 2017

Abstract

This paper discusses a current controversial copyright case involving inspiration. Marvin Gaye’s family, who owns the copyright to “Got to Give It Up,” claims that “Blurred Lines,” made famous by Robin Thicke, infringes on the family’s copyright. The Gaye family prevailed at trial. At summary judgment, the Federal District Court permitted the case to go to trial without determining whether there were elements to “Got to Give It Up” that were unprotected as unoriginal, commonplace musical ideas, or musical building blocks. Had the court made such a determination, the case should not have gone to trial. The summary judgment phase of litigation is supposed to weed out obviously unmeritorious cases such as this one. This article analyzes the two songs in detail from a music theory perspective and concludes that the similarities between the two songs were unprotected and that the protected elements were not similar. Accordingly, summary judgment should have been granted holding that there was no infringement. Further, the Gaye family should not have succeeded at trial. In our view, the summary judgment process failed, and we make some recommendations on how to improve the courts review at summary judgment for music copyright cases.

Keywords: copyright, summary judgment, music, ideas, scenes a faire, PTD, infringement, musicology, music theory

JEL Classification: K1, K11, K19, K2, K20, K29, K3, K30, K39, K40, K41, K49

Suggested Citation

Madison, Allen and Lombardi, Paul, Blurred Justice (September 27, 2017). Forthcoming 38 Loyola of Los Angeles Entertainment Law Review (2018). Available at SSRN: https://ssrn.com/abstract=3047567

Allen Madison (Contact Author)

University of South Dakota Law School ( email )

414 E. Clark Street
Vermillion, SD 57069
United States

HOME PAGE: http://www.usd.edu/faculty-and-staff/Allen-Madison

Paul Lombardi

University of South Dakota - Department of Music ( email )

414 E. Clark St.
Warren M. Lee Center for Fine Arts, Room 114
Vermillion, SD 57069
United States

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