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Commentary: 'Thin' vs. 'Broad' Protection for Music Works
The hotly disputed legal issue between the majority and dissent in the recent, highly-publicized “Blurred Lines” decision by the U.S. Court of Appeals for the Ninth Circuit in Williams v. Gaye, 15-56880, concerned whether Marvin Gaye's 1976 hit song “Got to Give it Up” was entitled to “broad” or “thin” copyright protection. The Ninth Circuit, in a 2-1 decision over a vigorous dissent, upheld the jury's determination that Pharrell Williams and Robin Thicke's worldwide No. 1 2013 hit song “Blurred Lines” infringed Gaye's work. Williams and Thicke are asking the Ninth Circuit to rehear the case en banc.
The 2-1 panel's determination that the musical compositions at issue were entitled to “broad” copyright protection was critical to the outcome of the case because if a work is determined to be entitled to “thin” copyright protection, then proving infringement requires showing the works are “virtually identical.” In contrast, establishing infringement for a work that enjoys “broad” copyright protection only requires showing that the works are of “substantial similarity,” making it much easier to prove infringement.
Distinguishing Thin v. Broad
The distinction between “thin” and “broad” copyright protection is based on the principle that copyright protects expressions and not ideas. Determining whether a category of work can claim “broad” or “thin” copyright protection is a function of the “range of expression” available for the idea. That determination is often tedious, requiring in-depth, case-by-case examination and analysis. The following examples from prior court decisions are instructive.
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