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AUTHOR
Douglas Panzer
(610)797-9000
dpanzer@flblaw.com
September 16, 2014

Hey Hey Hey, Robin Thicke! Drunk and High Doesn’t Obviate Copyright Infringement

Posted By Douglas Panzer @ 4:08 pm
Filed under: Civil Liability,Copyrights,Music,Sound Recordings

Robin Thicke has been pretty well skewered the last year. He’s been called a misogynist and folks have called his huge hit song “Blurred Lines” such colorful descriptors as “rapey” and “a rape song.” As I discussed a while back, he also got involved with litigation against the heirs of Marvin Gaye over whether the same song ripped off Marvin. And now, according to every news outlet under the sun (since this is the most important story around), Robin Thicke is piling on Robin Thicke, saying he was high and drunk all last year. He’s also adding to his own slimeball factor by throwing the super-talented Pharrell Williams under the bus in the Gaye family copyright litigation.

So what does this have to do with this blog?!

Well, Thicke seems to be trying to a) cast off any claim to authorship of the song despite his earlier statements to the contrary; and b) relieve himself of any culpability for copyright infringement by claiming that he was too wasted to consciously infringe Gaye’s copyright. There’s just one problem here…but it’s big. There is no such thing as innocent copyright infringement. Courts use the analogy that “you can’t unring a bell.” That is, once you’ve heard a song, you can’t un-hear it. So you may or may not have consciously or intentionally infringed a copyright by writing or recording a substantially similar song, but if the songs are substantially similar and the copyright in the earlier work is valid, you still infringed the copyright.

Copyright infringement requires two factors to be shown: 1) Ownership of a valid copyright. 2) Copying of the plaintiff’s copyrighted work by the defendant.

Direct, purposeful copying is very infrequently capable of demonstration. Therefore, the analysis of copying frequently relies on whether a) the defendant had access to the plaintiff’s work, and b) whether the two works are substantially similar. In this case, access is a slam dunk. Not only was “Got To Give It Up” a big hit for Marvin Gaye (which in and of itself would be enough to show access), but Thicke even mentioned the song in a Billboard interview last year, according to CNN. This will come down to the analysis of substantial similarity. If the similarity is there, those who wrote “Blurred Lines” and those who recorded it are liable for copyright infringement.

I guess Thicke announced himself as a substance abuser and burned his bridges with Pharrell for no good reason. Nice move.

See also:
Daily Beast calls Blurred Lines “rapey”


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