A hotly disputed legal issue between the majority and dissent in the recent, highly publicized, U.S. Court of Appeals for the Ninth Circuit “Blurred Lines” decision in Williams v. Gaye, No. 15-56880, concerned whether Marvin Gaye's 1976 hit song “Got to Give it Up” was entitled to “broad” or “thin” copyright protection. The Ninth Circuit panel, in a 2-1 decision over a vigorous dissent, upheld the jury's determination that Pharrell Williams and Robin Thicke's “Blurred Lines,” which was the worldwide No. 1 song in 2013, infringed Gaye's work.

The panel's determination that the musical compositions at issue were entitled to “broad” copyright protection was critical to the outcome of the case because if a work is determined to be entitled to “thin” copyright protection, then proving infringement requires showing the works are “virtually identical.” In contrast, establishing infringement for a work that enjoys “broad” copyright protection only requires showing that the works are of “substantial similarity,” making it much easier to prove infringement.

The distinction between “thin” and “broad” copyright protection is based on the principle that copyright protects expressions and not ideas. Determining whether a category of work can claim “broad” or “thin” copyright protection is a function of the “range of expression” available for the idea. That determination is often tedious, requiring in-depth, case by case examination and analysis. The following examples from court decisions are instructive.

With regard to depiction of animals in their natural surroundings, the Ninth Circuit in Satava v. Lowry, 323 F.3d 805, 813 (9th Cir. 2003) identified nonprotectable ideas, such as “an eagle with talons extended to snatch a mouse.” However, the court found certain expression of these same ideas dealing with “pose, attitude, gesture, muscle structure, facial expression, coat, or texture” may be protectable. Because of the relatively narrow range of expressions available, courts find that depictions of live animals in their natural surroundings have “thin” copyright protection, see Modern Dog Design v. Target, 2013 WL 12315516, at *2–3 (W.D. Wash. 2013). In contrast, courts are likely to find “broad” copyright protection for animal depictions that are not realistic or not in their natural habitats because “an illustrator can find endless ways to combine colors, textures, dimensions, poses, and postures within the confines of depicting a recognizable” animal.

As another example, this one concerning depictions of natural plants in fabric designs, the Ninth Circuit in L.A. Printex Industries v. Aeropostale, 676 F.3d 841, 850 (2012) determined that a fabric design, consisting of “a repeating pattern of bouquets of flowers and three-leaf branches,” was entitled to broad copyright protection because “there is 'a wide range of expression' for selecting, coordinating, and arranging floral elements in stylized fabric designs.”

With respect to musical compositions, the “Blurred Lines” majority held that musical works are generally entitled to “broad' copyright protection, explaining that “[m]usic … is not capable of ready classification into only five or six constituent elements, but is instead comprised of a large array of elements, some combination of which is protectable by copyright.” The dissent disagreed, arguing for a judgment as a matter of law that there is only a limited number of original combination that are capable of protection under copyright law.

The detailed and vigorous debate in the “Blurred Lines” decision between the majority and dissent is highly informative and educational as to the scope of protection that musical works should be entitled to under the law.

By way of background, musical works are generally expressed by reference to primary compositional elements of melody (sequence of pitches played successively), harmony (a group of pitches played simultaneously) rhythm (a repetitive pattern of notes). Less prominent musical elements include tempo (the speed at which a composition is played), dynamics (the volume of sound), and instrumentation.

Concerning sufficient similarity of the melodies, Gaye's expert opined that a 10-note melodic sequence in “Got to Give it Up,” which the expert defined to as “The Signature Phrase” of the song, was also present in “Blurred Lines.” In support, the expert “identified four similar elements: each phrase begins with repeated notes; the phrases have three identical pitches in a row in the first measure and two in the second measure; each phrase begins with the same rhythm; and each phrase ends on a melisma (one word sung over multiple pitches).” The dissent disagreed, pointing out that the melodies of the two works begin and end on different pitches and that the highest, longest, most stressed pitch in each phrase is different.

Another disagreement focused on “the hook phrase,” which the expert for Gaye described as the four melodic pitches in “Got to Give It Up” sung to the lyrics “keep on dancin'.” According to the expert, “Blurred Lines” used similar hook phrases in two different places. The dissenting opinion, while conceding that three of the four pitches may be the same, pointed out the differences in the phrase's rhythms and in the underlying harmonies, and that the placement of the similar phrases in the songs were different.

Yet another disagreement concerned the songs' lyrics and related musical techniques, including Word Painting, which is “a compositional technique in which the music can be used to illustrate the words in the lyrics, such as setting the word “higher” to an ascending melody,” and Parlando, which is the spoken word in the middle of a song), and lyrical themes.”

The extensive and detailed arguments about the similarity, or lack thereof, of the two works highlights that multitude of components, techniques and elements on which musical works are built and strongly supports the conclusion that musical works enjoy a wide range of expression and thus must be entitled to “broad” copyright protection.

Dr. Dariush Adli, is the founder and president of ADLI Law Group. He is well recognized as a premier strategist in patent, trademark, copyright, trade secret and complex commercial disputes and is widely sought after by businesses large and small, seeking effective strategies for protecting their valuable intellectual property assets. He can be contacted at [email protected].