Got to give it up to the Ninth Circuit Court of Appeals.
Got to give it up to the Ninth Circuit Court of Appeals.

Today the Ninth Circuit Court of Appeals upheld a jury verdict that decreed Robin Thicke's #1 single from 2013, "Blurred Lines," had infringed the copyright of Marvin Gaye's 1977 song "Got to Give It Up." If you want more context about this decision, which is extremely important to anyone making music, Seattle-based intellectual property attorney J. Michael Keyes—who studied piano and composition at the Tbilisi State Conservatoire in the former Soviet Republic of Georgia—has issued an extensive statement about it, which you can read after the jump.

The Court’s decision is noteworthy in a couple of respects.

1. Upholding the jury’s verdict (and the ultimate damage award) could very well mean we see a new wave of additional music infringement lawsuits and claims. The 9th Circuit majority decision was quite explicit in opining that musical works receive broad protection and that “there is no one magical combination of factors that will automatically substantiate a musical infringement suit.” That standard is rather noteworthy and leaves quite a bit of play in the joints for future litigants to cobble together a music infringement claim. In fact, as the dissenting opinion points out, the majority decision seems to give copyright protection to a “musical style” as the two works “differ in melody, harmony, and rhythm."

2. One important but rather technical issue that the court did not decide (and that is directly relevant in the Led Zeppelin Stairway to Heaven appeal pending before the 9th Circuit) was whether the “scope” of copyright protection is dictated by the notes on the printed page (the sheet music) or whether the sound recording can be considered as defining the scope of protection. The trial court ruled that the scope of Gaye’s copyright protection was limited to the sheet music because that is what was submitted to the Copyright Office and what was ultimately registered. The 9th Circuit assumed, without deciding the issue, that the trial court made the correct decision. We will need to wait and see how the court deals with this same theme in the Stairway to Heaven case.

Here are the two songs, if you want to compare them for yourself: