Blurred Lines: Some Recent High Notes In Musical Copyright Infringement Litigation

Blurred Lines: Some Recent High Notes In Musical Copyright Infringement Litigation


The other week, the 2013 hit song “Blurred Lines” made legal news when a California federal jury slapped singer Robin Thicke and music producer Pharrell Williams with a $7.3 million damage award in a copyright infringement action brought by Marvin Gaye’s adult children. 2015 Jury Verdicts LEXIS 1091. Gaye had recorded the song “Got to Give It Up” in the 1970’s, and his children became successors to his copyright interests following his death in 1984. The suit had started as a preemptive strike by Thicke, Williams, and Clifford Harris (another singer on the track), who filed suit after hearing legal rumblings from the Gaye heirs, as well as  Bridgeport Music, Inc., which held the rights to  Funkadelic's song "Sexy Ways." Plaintiffs filed suit in the U.S. District Court for the Central District of California, seeking a declaration of noninfringement. Their complaint, however, was followed immediately by the Gaye heirs’ counterclaim for copyright infringement. Bridgeport subsequently agreed to dismissal of the claims involving “Sexy Ways.”

When the action proceeded to trial before U.S. District Judge John A. Kronstadt in February of 2015, the only claims left for the jury to consider were the counterclaims against Thicke, Williams, and Harris. On March 10, the jury reached a verdict in favor of the Gaye children, finding that they owned a valid copyright to "Got to Give it Up" and that the copyright had been infringed. The jury awarded Gaye’s children $ 4,000,000.00 in actual damages from Thicke.  The jury imposed additional damages consisting of lost profits of $ 1,610,455.31 against Williams and $ 1,768,191.88 against Thicke.

The verdict, while quite substantial, is just the latest in a long line of copyright infringement actions brought against famous musicians. In a noted case from 1976, a New York federal judge found that ex-Beatle George Harrison had completely lifted the Chiffon’s early ‘60’s girl group song, “He’s So Fine” when he wrote the song “My Sweet Lord.” Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177, 1976 U.S. Dist. LEXIS 13423 (S.D.N.Y. 1976). Although the judge believed that Harrison did not intend to directly copy the song and that he had been plagiarizing the song on a subconscious level, the judge found it clear that “My Sweet Lord: was the very same song as “He's So Fine,” but with different words.

A few years later, John Fogerty (of the 60’s group "Creedence Clearwater Revival") was cleared of copyright infringement in a case in which, oddly enough, he was accused of plagiarizing himself. The case eventually ended up in the United States Supreme Court on an appeal related to the issue of attorney’s fees.  Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 S. Ct. 1023, 127 L. Ed. 2d 455, 1994 U.S. LEXIS 2042.

 Chief Justice Rehnquist explained the unusual background to the case:

  In 1970, (Fogerty) wrote a song entitled "Run Through the Jungle" and sold the exclusive publishing rights to predecessors-in-interest of respondent Fantasy, Inc., who later obtained the copyright by assignment. The music group disbanded in 1972 and Fogerty subsequently published under another recording label. In 1985, he published and registered a copyright to a song entitled "The Old Man Down the Road," which was released on an album distributed by Warner Brothers Records, Inc. Respondent Fantasy, Inc., sued Fogerty, Warner Brothers, and affiliated companies, in District Court, alleging that "The Old Man Down the Road" was merely "Run Through the Jungle" with new words.  The copyright infringement claim went to trial and a jury returned a verdict in favor of Fogerty. Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 S. Ct. 1023, 127 L. Ed. 2d 455, 1994 U.S. LEXIS 2042

Although those are two of the more high profile musical copyright infringement cases, there have been a number of these types of cases over the years. In the early 1990’s, rapper Vanilla Ice (a true One-Hit-Wonder with the song “Ice Ice Baby “) faced copyright infringement claims for that one hit. Vanilla Ice, who had clearly sampled the rhythm baseline of the Queen/David Bowie collaboration “Under Pressure,” reportedly settled the case out of court.

In 2002, the Beastie Boys were cleared of copyright infringement, 2002 Jury Verdicts LEXIS 57031. Then ten years later, the Beastie Boys obtained a $1.7 million verdict in their own copyright infringement action against Monster Energy Company.  2014 Jury Verdicts LEXIS 10912. The Black  Eyed Peas are another band with experience on both sides of the “v.” in copyright infringement litigation, with suits stemming from "I Gotta Feeling," Pringle v. Adams, 2012 U.S. Dist. LEXIS 46332, 2012 WL 1103939 (C.D. Cal. Mar. 30, 2012), "My Humps," Tolliver v. McCants, 2009 U.S. Dist. LEXIS 25233, 2009 WL 804114 (S.D.N.Y. Mar. 25, 2009), and "I Need a Freak," McCants v. Tolliver, 2011 U.S. Dist. LEXIS 77841, 2011 WL 2893058 (N.D. Ohio July 14, 2011). In addition, the Black Eyed Peas fairly recently settled another copyright suit brought by Funk musician George Clinton, (see Law360 here).

And rounding out any list of famous (and semi-famous) musicians named in copyright infringement actions, we have the Bee Gees and the falsetto 70’s disco hit “How Deep Is Your Love” Selle v. Gibb, 741 F.2d 896, 1984 U.S. App. LEXIS 20270, 223 U.S.P.Q. (BNA) 195, Copy. L. Rep. (CCH) P25,688 (7th Cir. Ill. 1984); Stevie Wonder (a/k/a Stevland Morris) with “I Just Called To Say I Love You” Chiate v. Morris, 1992 U.S. App. LEXIS 20330 (9th Cir. Aug. 17, 1992); and the 1994 $5.4 million verdict against Michael Bolton for "Love Is a Wonderful Thing” Three Boys Music Corp. v. Bolton, 212 F.3d 477, 2000 U.S. App. LEXIS 9163, 54 U.S.P.Q.2D (BNA) 1720, Copy. L. Rep. (CCH) P28,082, 2000 Cal. Daily Op. Service 3651, 2000 Daily Journal DAR 4885 (9th Cir. Cal. 2000). Any list would not be complete, however, without mentioning music producer music producer Alvertis Isbell, who was awarded over $2 million by a Texas federal jury in 2012 following the denial of his motion for summary judgment. Alvertis Isbell v. DM Records, Inc., 2012 U.S. Dist. LEXIS 13525, 2012 WL 369246 (E.D. Tex. Feb. 3, 2012). And who might Alvertis Isabell be? Well, he’s none other than the person responsible for “Whoomp (There it is).”

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