Forthcoming 38 Loyola of Los Angeles Entertainment Law Review (2018)
65 Pages Posted: 4 Oct 2017
Date Written: September 27, 2017
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: Suggested Citation