Commentary: 'Thin' vs. 'Broad' Protection for Music Works

In another example, the Ninth Circuit determined in Printex Industries v. Aeropostale, 676 F.3d 841 (2012), that a fabric design, consisting of “a repeating pattern of bouquets of flowers and three-leaf branches,” was entitled to broad copyright protection because “there is 'a wide range of expression for selecting, coordinating, and arranging floral elements in stylized fabric designs.”

Scope of Musical Works Protection

The detailed and vigorous debate between the “Blurred Lines” majority and dissent is highly informative as to the scope of protection of musical works. The “Blurred Lines” majority held that musical works are generally entitled to “broad” copyright protection, explaining that “[m]usic … is not capable of ready classification into only five or six constituent elements, but is instead comprised of a large array of elements, some combination of which is protectable by copyright.” The dissent disagreed, arguing for a judgment as a matter of law that there is only a limited number of original combinations that are capable of protection under copyright law. Musical works are generally expressed by reference to primary compositional elements of melody, harmony and rhythm. Less prominent musical elements include tempo, dynamics (the volume of sound) and instrumentation.

Concerning sufficient similarity of the melodies, Gaye's expert opined that a 10-note melodic sequence in “Got to Give it Up,” which the expert defined as the “Signature Phrase” of the song, was also present in “Blurred Lines.” In support, the expert “identified four similar elements: each phrase begins with repeated notes; the phrases have three identical pitches in a row in the first measure and two in the second measure; each phrase begins with the same rhythm; and each phrase ends on a melisma (one word sung over multiple pitches).” The dissent disagreed, pointing out that the melodies of the two works begin and end on different pitches and that the highest, longest, most stressed pitch in each phrase is different.

Another disagreement focused on “the hook phrase,” which the expert for Gaye described as the four melodic pitches in “Got to Give It Up” sung to the lyrics “keep on dancing.'” According to the expert, “Blurred Lines” used similar hook phrases in two different places. The dissenting opinion, while conceding that three of the four pitches may be the same, pointed out the differences in the phrase's rhythms and in the underlying harmonies, and that the placement of the similar phrases in the songs were different.

Yet another disagreement in Williams v. Gaye concerned the songs' lyrics and related musical techniques, including word painting, which is “a compositional technique in which the music can be used to illustrate the words in the lyrics, such as setting the word 'higher' to an ascending melody,” and parlando, which is spoken word in the middle of a song, and lyrical themes.

Conclusion

The extensive and detailed arguments about the similarity, or lack thereof, of the two works highlighted that multitude of components, techniques and elements on which musical works are built and strongly supports the conclusion that musical works enjoy a wide range of expression and thus must be entitled to “broad” copyright protection.

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Dr. Dariush Adli is founder and president of ADLI Law Group in Los Angeles. His practice includes business and intellectual property litigation, media and entertainment law. He can be contacted at [email protected].