Can You Name That Tune? Minor Drop, Major Infringement

• Published date: 20 August 2020
• Law Firm: Wilson Elser Moskowitz Edelman & Dicker LLP
• Author: Mr Anthony Corleto, Kara Thorvaldsen and Nicole Haimson

Music artists have found it difficult to discern which creative grounds are safe to tread and which creative paths lead to copyright issues in recent years

When law and pop culture intersect, everyone has an opinion. Several recent high-profile copyright cases involving chart-topping songs have drawn attention to an area of the law that is not well understood.

will explain the path from Williams v. Gaye ("Blurred Lines"), to Skidmore v. Led Zeppelin ("Stairway to Heaven"), and Gray v. Perry ("Dark Horse"),so that you can throw down the law the next time you hear one of these songs at a cocktail party.

Blurred Lines began as an equitable action by Pharrell Williams, Robin Thicke, and the rapper "TI" to declare their song "Blurred Lines" was not infringing against Marvin Gaye's 1976 hit, "Got to Give It Up." Marvin Gaye's estate counterclaimed for a declaration of infringement and for damages. "Blurred Lines" was Billboard's 2013 "Song of the Summer." It was ubiquitous because it was catchy. With a party background, funky bass, a smooth hook, and a dose of cowbell, "Blurred Lines" was the perfect summer party song. Was it a coincidence that Marvin Gaye scored a hit with the same elements in "Got to Give It Up" a few decades earlier? Did Gaye's creation preclude others from using that recipe? A jury decided that it was copyright infringement, and an appeals court upheld the verdict, primarily on procedural grounds, but not without a stinging dissent warning that the decision upended the concept of "protectable expression" and would open the floodgates for composers to claim rights in a genre.

Central to the...