Last week, the Ninth Circuit upheld the lower court ruling that the artists of the 2013 “Blurred Lines” best-selling single infringed the copyright of Marvin Gaye’s 1977 song “Got To Give It Up”.
In 2013, the family of the late Marvin Gaye sued musicians Pharrell Williams, Robin Thicke, and T.I. (Clifford Harris, Jr.), and related recording companies, for copyright infringement. “Blurred Lines” was the best-selling single in the world that year and the Gaye family believed it to be similar in composition to Marvin Gaye’s 1977 song “Got To Give It Up”. In 2015, the trial jury agreed. After three years of an appeal process brought by the musician defendants, the United States Court of Appeals for the Ninth Circuit upheld the infringement ruling (Williams, et al. v. Gaye, et al. Case No. 15-56880)(March 21, 2018).
The decision was not unanimous. Judge Nguyen wrote a dissenting opinion stating that the songs “differ in melody, harmony, and rhythm.” She also noted that it can be “challenging for judges untrained in music to parse two pieces of sheet music for extrinsic similarity. But however difficult this exercise, we cannot simply defer to the conclusions of experts about the ultimate finding of substantial similarity. […] Judges must still decide whether, as a matter of law, these elements collectively support a finding of substantial similarity.” This ruling ultimately changes the music industry landscape moving forward, as it is arguable that the decision improperly protects an artist’s form of musical style. The majority opinion written by Judge Milan D. Smith, Jr., however, focused mostly on the technicalities of the case and the grounds for appeal, determining that the trial court erred only in finding Interscope Records and T.I. liable.
The Gaye family is entitled to approximately a $5.3 million-dollar judgement and running royalties of 50% on future songwriter and publishing revenues. The damages breakdown consisted of: $3,188,528 in actual damages, plus profits of $1,768,192 against Thicke and $357,631 against Williams (and companies collecting royalties on William’s behalf). TI and his associated recording company were cleared of any infringement.
***To investigate or consider copyright protection for music, lyrics, or other works of art, or for more information, please contact Pamela K. Riewerts, Esq., partner at Oliver & Grimsley, LLC. Pamela may be reached via email at: email@example.com
We all know that guy or lady – the one who does impressions, or makes up a character and has us laughing all nite. Well, it was no laughing matter to Hank Azaria when he was threatened with infringement of a character he created that went viral. Azaria v. Bierko, C.D. Ca CV 12-9732 GAF (2/21/2014).
Azaria is an actor and voice performer (among many other voices, he voices several characters on the Simpsons). Since about 1986 Azaria kept his guests in stitches at parties with a fictional baseball announcer voice. In 1990 he was introduced by a mutual actor friend (Matthew Perry) to Craig Bierko – another comedian, who also did a fictional baseball announcer voice and character. They interacted with their characters and often “riffed” on their characters. Azaria wanted to use the voicing of Bierko’s announcer but Bierko refused.
Fast forward to 2010 (about 10 years later) when Azaria publishes a video on Funny or Die (note: has mature content) with a Baseball announcer character “Jim Brockmire”, and it goes viral. Azaria is considering expanding the “character” into more short stories or videos, but Bierko threatens Azaria for violation of his Baseball announcer voice and character – and Azaria sues for a declaratory judgment of non infringement/non violation of rights.
Bierko’s “character” was not well defined – and it was only twice fixed in a tangible medium – both times only in audio and in both cases, only the voice provided character definition. Azaria’s character was only fixed in a tangible medium once – however, the video has other announcers who “define” the character traits by describing Jim Brockmire, and Azaria’s portrayal of the fictional Jim Brockmire in the short video gave the character additional identifiable traits (type of clothing, style of announcing, over the top movie references etc) – many more attributes than those of Bierko’s 1 dimensional voice character. Ultimately the court ruled in Azaria’s favor. The court also held Bierko’s character was not protectable.
There is no legal question that fictional characters can be copyrighted, and hence, achieve protection from infringement. However, the character must be rather well developed – either textually or via audio or video means.
This case demonstrates a number of issues we see regularly in our media practice – a confluence of ideas (which are generally not protectable absent a contract), and multiple people building one thought or idea on top of another until something actually creative and protectable is born. When that happens – what are the rights of the parties? Who owns the character that is born?
Likewise, we often encounter the reverse issue – a creative person sees a short video or skit, or reads some story (whether about a real or made up person) and then their ideas start to form and they develop a story or character from that interaction with existing content. If they write that story or make the video, will they infringe the person/content they referenced or built upon? Was it fair use? Was the content even protectable?
The court avoided the 1st Amendment issue – but there is a also a strong question here whether the video – which is a classic parody of baseball announcers in general, would be actionable. Recall the numerous funny skits of Will Ferrell as Harry Caray – all protectable as fair use paraodies.
We enjoyed the Azaria case because it describes a rather typical scenario . . . where the creative thought process takes a long time to develop and sources from interactions with third parties (sometimes at parties) who at least provided a germ of an idea. If the facts had been changed only slightly (say that Azaria had never done a baseball announcer until he met Bierko) would the result have been different?
Determining whether a creative character is infringed, or can be protected, and to what extent, can be complex. If the media presentation is a classic parody you can fall back on the 1st Amendment in many cases – but if the character is going to be used in a more mainstream manner, it is important to consider both possible infringement issues, as well as protection issues. In terms of protection issues, as the Azaria case demonstrates, it is important that the fixation of the character (e.g. in audio, audio-visual, or textual mediums) describe a multidimensional and complete character.
For media clearance and protection issues please feel free to contact Mike Oliver or Kim Grimsley at Oliver & Grimsley.