By Marc D. Ostrow

There’s been a blizzard of articles regarding the jury decision finding that Robin Thicke and Pharrell Williams’ 2013 megahit, “Blurred Lines,” infringed upon Marvin Gaye’s song, “Got to Give It Up.” I’ll leave it to you, gentle reader, to judge how similar the recordings of two songs are to each other. While most of my musician friends were pleased with the decision and the jury’s $7.3 million award, my copyright law colleagues and I are somewhat skeptical that it will be upheld on appeal. Here’s why.

As I’ve recently written, when one is dealing with recorded music, there are two distinct copyrights involved. One is the copyright in the musical composition or song and the other is the copyright in the particular recording of the song. This is best illustrated in connection with “cover” recordings. Some of us are old enough to remember that The Bangles had a hit around 1987 with a cover of Paul Simon’s song, “Hazy Shade of Winter,” which was originally recorded by Simon & Garfunkel in 1968. The copyright in the song is owned either by the songwriter(s) or their music publisher(s). The particular recording of the song is usually owned by the artist’s record label.

In the “Blurred lines” case, Marvin Gaye’s heirs sued on the basis of copyright in the song, only, not in his original recording of “Got to Give It Up” as they presumably had no copyright ownership in the recording. This leads to the question as to what the song is, separate from the recording of it. Although it’s no longer required for copyright protection, in order to obtain a copyright registration in any work, the copyright owner has to file an application with the Copyright Office. This consists of the application form, which includes the title and writers of the work as well as a “deposit copy” of what the work is. Back when Gaye wrote “Got to Give It Up” in 1977, copyright registration was mandatory to obtain copyright protection for the song.

And back when “Got to Give It Up” was registered for copyright, the only music that was often filed as a deposit copy was a “lead sheet” for the song. As anyone who’s ever played out of a fake book knows, a lead sheet consists only of the song’s melody line, lyrics and the chord symbols that represent the song’s harmonies. I’ve posted a handwritten lead sheet here. Sometimes the deposit copy consists of slightly more elaborate sheet music: the melody line and chord symbols with piano accompaniment. Deposit copies still need to be filed with a copyright registration but these days you can upload a MP3 recording of the song with your online registration, which, of course, provides a richer, more fully realized rendition of a song than can be conveyed in simple lead sheet or even a full score.

So, for copyright purposes, the song, “Got to Give It Up,” is likely at best, a piece of piano/vocal sheet music and at worst a lowly lead sheet. That’s why the judge instructed the jury to only consider the sheet music, not Marvin Gaye’s recording, a copyright that Gaye’s family doesn’t own. It would be very difficult to convey the “groove” of the “Got to Give It Up,” including the beat and other elements in the sheet music to the song as opposed to the recording of it. It’s far more likely that the deposit copy of the song, “Blurred Lines,” is in fact, the recording (which is now permitted) or at least some demo version of it.

Moreover, not every element in a song (whether in the form of sheet music or in a recording), is copyrightable. You can’t copyright “ideas” but only “expression” of ideas. For example, chord progressions such as a “falling thirds” (think of the C, Am, F, G chords of hundreds of 1950s songs) are not copyrightable. So, ultimately, for purposes of this lawsuit, the issue on appeal will be whether the song or the recording of “Blurred Lines” infringed original, copyrightable expression in the song “Got to Give It Up,” as represented by the sheet music. And that’s hard to prove.

And that’s why the jury verdict may be overturned on appeal. In other words, one can’t blur the line between the copyright in the song and the copyright in the recording. In terms of content (as opposed to ownership) it’s less of a distinction now since deposit copies of songs can be recordings of them – but that’s not what the practice was when “Got to Give It Up” was registered for copyright protection.