The chart topping song "Blurred Lines" by Robin Thicke and Pharrell Williams has been engulfed in a hurricane of controversy since it first hit the airwaves in 2013.  While the lyrics of the song have received most of the criticism, many music loving folk could not help but notice the marked resemblance to Marvin Gaye's 1977 hit "Got to Give It Up".

An LA jury has recently put the issue to bed, for now, in a verdict that has ordered Thicke and Williams to collectively pay a staggering $7.4-million to Gaye's family for infringing the copyright in Gaye's song (more specifically the copyright in the sheet music or melody of the song). 

This decision comes hot on the heels of an allegation earlier this year that Sam Smith's Grammy winning "Stay with Me" copied aspects from Tom Petty's "I Won’t Back Down".  Although Smith claimed that the similarity was a complete musical coincidence, Petty and his co-writer, Jeff Lynne, were subsequently given partial credit for Smith's song in a settlement agreement that escaped the courts, but not the media.

What sets Smith apart from Thicke and Williams may be that Smith claimed never to have heard of Petty's song before creating his own, and this was never questioned. On the other hand, while Thicke and Williams claim to have created their work independently, evidence emerged during the trial of them having admitted to not only drawing inspiration from Gaye, but also of Thicke being quoted as saying that Gaye's song was one of his favourites and that he and Williams should write a song with the same groove.

While there is no legal bar to drawing inspiration from another piece of work, the difficulty starts to set in where the ‘inspiration’ of the subsequent works seems to borrow too much. 

Our courts have held that determining copyright infringement involves a two stage inquiry: not only must there be an objective measure of sufficient similarity between the works, but a causal connection between the two works needs to be established as well. In other words, two works, even strikingly similar, could still enjoy copyright protection without necessarily infringing on the other. 

Naturally, the more two works have in common, the less likely a court, or anyone else, is going to believe that they were created completely independently of each other. There are, of course, exceptions to this, such as photographers taking photos of iconic locations, which are available to all.

Copyright is a fundamental tool to any creative mind: it does not require any formal registration before the rights can be enforced, and it can therefore be exceptionally useful in protecting your IP if you know how to handle it correctly.

That being said, it is just as important to make sure that you are not infringing someone else’s copyright in the process of creating your own work.  A simple, but effective, piece of advice is to keep a detailed record of your creative process, retaining all initial drafts and work-ups, and to obtain permission from anyone inspiring that process, if at all in doubt.

Copying may be the sincerest form of flattery, but one should always be careful not to tread on any copyright protected toes. After all, there are certainly better things on which to spend $7.4-million.

– Adams & Adams