Infringing a Feeling? Williams v. Gaye and the "Blurred Lines" Verdict

The Ninth Circuit's decision affirming that 'Blurred Lines' infringed Marvin Gaye's 'Got to Give It Up' and the enduring fear that copyright can now protect a song's groove and vibe.

Few music copyright decisions have unsettled songwriters as deeply as Williams v. Gaye, Nos. 15-56880 et al. (9th Cir.), the appeal from the jury verdict that found Pharrell Williams and Robin Thicke’s 2013 megahit “Blurred Lines” infringed the copyright in Marvin Gaye’s 1977 classic “Got to Give It Up.” The Ninth Circuit issued its opinion on March 21, 2018, and amended it on July 11, 2018, affirming most of the judgment against Williams and Thicke. The case became a referendum on a question that musicologists and lawyers had argued about for decades: when two songs share a feel—the same loping rhythmic pocket, the same party-track atmosphere—but few if any identical notes, can one infringe the other?

At a glance

Matter: Williams v. Gaye, Nos. 15-56880, 15-56881, 15-56882 (consolidated)
Forum: U.S. Court of Appeals for the Ninth Circuit (on appeal from the Central District of California, Judge John A. Kronstadt)
Opinion: March 21, 2018; amended July 11, 2018
The songs: Marvin Gaye’s “Got to Give It Up” (1977) and “Blurred Lines” (2013) by Williams and Thicke
Jury verdict (2015): “Blurred Lines” infringed; roughly $5.3 million awarded after remittitur, plus a running royalty
On appeal: Affirmed the verdict against Williams and Thicke; reinstated the jury’s verdict clearing Clifford Harris Jr. (T.I.) and the Interscope parties; reversed an award of attorneys’ fees
The fault line: A 2-1 panel, with Judge Nguyen warning the majority let copyright reach a musical “groove” or “style”

The deposit copy controlled the comparison

A crucial—and easily overlooked—feature of the case is that “Got to Give It Up” is governed by the 1909 Copyright Act, under which protection for a musical composition extended only to what was deposited with the Copyright Office. For “Got to Give It Up,” that deposit was a written lead sheet, not the famous recording with its percussion, cowbell, party chatter, and Gaye’s falsetto. The district court ruled that the Gayes’ copyright was limited to the lead sheet, and the Ninth Circuit accepted that determination “without deciding” the broader question.

That framing should have narrowed the dispute considerably, because the elements that make the two records feel alike—the production, the groove, the ambient sounds—live in the recording, not the sparse notation. The Gayes’ musicologist accordingly testified to a “constellation” of compositional similarities drawn from the lead sheet: the signature phrase, hooks, bass lines, keyboard parts, and theme. The defendants countered that these were either unprotectable commonplaces or simply not similar. The jury sided with the Gayes.

A verdict the appeals court would not second-guess

The Ninth Circuit’s affirmance turned less on a bold statement of substantial-similarity law than on the deferential posture of appellate review after a jury trial. The majority repeatedly emphasized the limits of its role: it was not deciding whether the songs were in fact substantially similar, only whether the verdict was supported by the evidence and whether the trial was free of reversible error.

On that standard, the defendants lost on nearly every front. The court held that “Got to Give It Up” was entitled to broad—not thin—copyright protection, which lowered the bar for the extrinsic similarity analysis. It found no abuse of discretion in the district court’s evidentiary rulings, including the decision to let the Gayes’ experts testify to the lead-sheet elements while keeping the sound recording itself away from the jury on the similarity question. It declined to disturb the jury instructions. And it upheld the damages and the running royalty on Williams and Thicke’s continued exploitation of the song.

The panel did trim the judgment. It reversed the district court’s post-trial decision overturning the jury’s general verdicts in favor of Harris and the Interscope parties—reinstating the jury’s finding that those defendants were not liable—and it reversed the award of attorneys’ fees to the Gayes. But the core holding stood: the verdict against the song’s two principal authors was affirmed.

The dissent’s warning about grooves and genres

Judge Jacqueline Nguyen dissented, and her opinion has arguably been more influential on the music industry’s psyche than the majority’s. She argued that “Blurred Lines” and “Got to Give It Up” are objectively dissimilar—they differ in melody, harmony, and rhythm—and that the majority had allowed the Gayes to copyright not a composition but a vibe: “They shared a ‘groove’ or a ‘feel,’” she wrote, but a groove is a style, and “the law does not protect style.” Her core fear was that affirming the verdict would let copyright owners monopolize a genre or an era’s sound, chilling the ordinary practice of writing in a tradition.

That tension—between the unremarkable principle that style is unprotectable and the reality that a jury found infringement based on what sounds a lot like style—is what gave the case its outsized reputation. Defenders of the majority respond that the verdict rested on a constellation of specific compositional choices, that the deposit-copy limitation actually constrained the comparison, and that the appellate posture demanded deference. Critics respond that musicologists can always assemble a “constellation” from commonplace building blocks, and that a lay jury cannot reliably separate protectable expression from genre convention.

Open questions

Did the case create a “groove” copyright, or merely defer to a jury? The majority insisted it was reviewing for sufficiency of the evidence, not blessing protection for feel. Whether the practical effect is the same remains contested.
What does broad versus thin protection do here? The court found “Got to Give It Up” entitled to broad protection, easing the similarity showing. How that label is assigned to a given song is often outcome-determinative.
How much did the deposit-copy limit actually constrain the jury? Experts described lead-sheet elements, but jurors may have absorbed an overall impression of similarity that the notation alone could not justify.
Is expert “constellation” testimony a reliable filter? If a musicologist can assemble enough small overlaps from any two songs in a genre, the methodology may prove too much.

Implications

Songwriters now clear “inspiration.” The verdict pushed artists and labels toward proactive licensing or co-writing credits when a new song evokes an older one—even absent copied notes.
Trial dynamics dominate. Because appellate review is deferential, the battle is won or lost at trial, on expert credibility and jury impression, not on a tidy legal rule.
The deposit copy matters for older songs. For 1909-Act compositions, the written deposit—not the beloved recording—defines the protectable work, a point defendants must press early.
“Style is unprotectable” is a defense theme, not a guarantee. Judge Nguyen’s principle is sound, but juries can find infringement on a bundle of specific choices that look like style.
Expect more credit-sharing settlements. Post-Blurred Lines, many disputes resolve through writing credits rather than litigation, reflecting heightened risk aversion.

Frequently asked questions

Can copyright protect a song’s “groove” or “feel”? Not directly—style, genre, and feel are unprotectable. But Williams v. Gaye affirmed a verdict that critics, including the dissent, argued came perilously close to protecting feel, by allowing a jury to find infringement based on a constellation of specific compositional elements that together evoke the same atmosphere.

Why couldn’t the jury simply listen to both records? Because “Got to Give It Up” is a 1909-Act work whose copyright was limited to the lead sheet deposited with the Copyright Office, the recording’s production elements were largely off the table for the similarity question; the comparison focused on notated composition.

Did everyone involved in “Blurred Lines” lose? No. The Ninth Circuit affirmed liability against Williams and Thicke but reinstated the jury’s verdict clearing rapper Clifford Harris Jr. (T.I.) and the Interscope/record-company defendants, and it reversed an award of attorneys’ fees to the Gayes.