Robin Thicke v. Marvin Gaye: Why It’s Not What You Think (and what Creatives Can Learn from This)

Today’s post is about these two conversations:

Total Tweets for Gaye blog

So, here we are.  Funny thing is, @JMonthemic and @IAMTashaJones’s comment and question, respectively, are not isolated.  Based on the Twitter and Blogsphere (and commentary made by the hosts on yesterday’s airing of The Tom Joyner Morning Show), everyone is thinking the same thing(s).

So, I’d like to set the record straight on what is really happening.  Why?  Because it’s unfair when folks who take steps to protect their brand and work (translation: income) are bashed in the press and media for doing so.   All Brand Owners (and brand managers/leaders) and Creatives have to grow a thick skin (no pun intended) to proactively protect their brand/work because #blackTwitter people can be so ruthless!   It is my hope that by the time you finish reading you’ll learn three things:  (1) what Robin Thicke is NOT doing, (2) what he IS doing, and (3) why you (as a brand owner and/or creative) must care.

Robin Thicke is NOT suing the Gaye Family for copyright infringement.

Robin Thicke is not “suing” the Gaye Family, in the traditional sense.  He filed an action for a declaratory judgment.  What’s a declaratory action?  It is a petition that tells a judge that there is a controversy between two people, that there is uncertainty as to what the two people’s respective legal rights are, and asks the judge to make a determination of who has the right to do what.  It’s not a lawsuit for damages.  It’s not a complaint asking for money.  It’s not even asking the judge to find fault.  It’s simply asking the judge to conclusively rule on each’s  party’s rights, duties, and obligations.   That’s it.

By now, you know that Robin Thicke is the artist in the #1 hit song of the summer, “Blurred Lines” which features a sound similar to Marvin Gaye’s “Got to Give It Up” and Funkadelic’s “Sexy Ways” (which is owned by Bridgeport Music).   Recently, it was the GAYE FAMILY that threatened legal action against Robin Thicke.  They contacted him (and Pharrell Williams and T.I., producers of the hit song) and accused them of copyright infringement and demanded a share of the profits.  Yikes!

What the Gaye Family did amounted to a cease and desist demand.  In law, a cease and desist demand can be the equivalent of (a) creating a “real and reasonable apprehension of litigation;” and (b) bringing about actual conflict between two parties.   And when this happens, it creates the perfect storm (and legal grounds) for filing an action for a declaratory judgment.  So, let’s not be upset with Robin, Pharrell, and TI, okay?. The Gayes  threw the first punch, so they should have been prepared to either throw another punch for the knockout (i.e. file a lawsuit) or defend themselves from left hook they provoked (i.,e. action for declaratory judgement).

Robin Thicke IS  proactively preventing this situation from getting out of control.  And by “out of control”, I mean, allowing his bajillion dollar hit song to be the subject of an [unpredictable] lawsuit for damages.

Robin, Pharrell, and T.I., rather than sitting back and waiting for the Gaye Family to file a copyright infringement action, went on the offensive and filed this declaratory judgment lawsuit in an attempt to resolve this matter in a timely fashion.

*in my Obama voice* Let’s be clear, this isn’t a clear case of infringement.  Robin and Pharrell didn’t use an official “sample” of the Gaye songs because the original master recording wasn’t used.  The songs have a similar rhythmic pattern and chord progression, but they aren’t exactly the same (as demonstrated by yesterday’s mix on The Tom Joyner Morning Show).  However, it wouldn’t take the most skillful DJ to create a successful mash-up either.  But here’s what really matters:  Robin, Pharrell, and TI are arguing that they have the right to use the rhythmic pattern and chord progression because those are NOT copyrightable elements.   They are, instead, general elements reflecting a particular genre of music.   Copyright does not protect ideas, concepts, or genres of music.  If it did, no one would be able to create anything without being accused of infringement.

So….what Robin and Friends have done is ask a judge to make a legal determination of whether could they can be held liable for copyright infringement if they were influenced and inspired by Marvin Gaye’s and Funkadelic’s prior works, but did not actually sample such prior works or otherwise literally copy any of Marvin Gaye’s or Funkadelic’s music or lyrics” .    The beauty of this is that no matter how the judge rules, it is up to the PARTIES to negotiate how to deal with this situation, NOT a judge or jury.   If the judge says, “No, you can’t be held liable”, then the situation ends.   If the judge says, “Yes, you can be held liable”, the parties can still privately negotiate the amount of money that would be due to the Gaye Family…instead of a jury.     We all know how juries can be.  See, Casey Anthony, Trayvon Martin.  

FREE LEGAL TIP:  To all of the brand owners (and managers/leaders) and creatives out there, keep in mind that any time you send a cease and desist letter or make a phone call demanding someone cease and desist, you should be careful what language you use because you could set yourself up to be the defendant in an action for declaratory judgement.  On the flip side, keep in mind that if someone sends you a cease a desist letter threatening your intellectual property rights and brand, you do not have to anxiously wait in the dark wondering what the other side is planning to do to you.  You can proactively file an action for a declaratory judgment to get a legally binding answer that can guide the parties to swift resolution WITHOUT having to place your work/brand in the hands of an arbitrary fact finder.

I won’t delve into the details on whether this would amount to copyright infringement; that isn’t the purpose of this post.   But I will say, that this is a case to watch, just as much as Pharrell’s other declaratory action regarding trademark infringement with

Trezanay M. Atkins [was] the Creator and Lead Strategist at tma| The Brand Infringement Firm, a law firm designed to help protect and defend brands by providing preventative education, brand advocacy, and case litigation. She [still] provides brand licensing and strategic communications solutions to help brands through brand management issues.  Ms. Atkins is the proud mom of two enjoys live gospel, blues, and jazz music, is a diehard fan of stand-up comedy, and is a dedicated member of her local church in Indianapolis.    


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