Are Pharrell and Thicke $7 Million dollars (plus legal fees) poorer and the heirs of Marvin Gaye that much richer (minus legal fees)? Don’t be so sure.

In the copyright infringement case making the news, where a jury decided the song “Blurred Lines” was an infringing derivative of Marvin Gaye’s “Got to Give it Up”, the evidence did not include similarity of melody or lyrics.

While the test for copyright infringement is “substantial similarity”, the law requires that the similarity not be based primarily on commonly used expressive elements, referred to in the literary context as “scenes a faire.”

In this case, the similarities (to my ear, y’all) are the tempo, the timbre of the synthesized bass sound, the syncopation of the singing, and the breathy placement of the singing in the higher register of the singers.

While both songs rely on a similarly syncopated I-IV-V chord progression in the bass, that is a common element in pop music.

This case is ripe for reversal on appeal because the notion that two songs with completely distinct melodies and lyrics are considered “substantially similar” due to stylistic similarities in the production of the sound recordings lowers the threshold to find copyright infringement from its traditional level, as a matter of law. Stay tuned.

Many thanks to my friend and colleague Wallace Collins, Esq. for raising this issue.