I know you want it (to be sued) | Intellectual property and business law blog

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Steve O'Donnell, Ph.D. Registered Patent Attorney

I know you want it (to be sued)

Remember the lazy, carefree days of summer 2013? Edward Snowden disclosed things you weren’t supposed to read, and we mourned the deaths of James Gandolfini, Cory Monteith, and one the greatest horror writers of all time: Richard Matheson. Miley Cyrus taught the world to love again (or something like that), and the song Blurred Lines was everywhere, with it’s slightly rapey lyrics, and a swagger rivaled only by Robin Thicke’s intricate beard trimming.

Ah, good times, good times.

Of course, not everyone liked Blurred Lines, particularly Marvin Gaye’s heirs, who thought it was just a bit too much like his Got to Give it Up. It probably doesn’t help that Robin Thicke said they were trying to write something similar (it now seems that he’s trying to walk that back a bit by saying he was too high on Vicodin and alcohol to have co-written the song). Gaye’s heirs sued and the judge in the case just denied a motion for summary judgment, which has the news services proclaiming that Thicke lost the first round.

While I guess that’s technically true, that denial by itself doesn’t mean particularly much. By fling a motion for summary judgment, Thicke’s lawyers were saying that there’s no questions of fact that need to be decided by a trial and since there’s no questions, and since we’re right, give us the win without having to go through a trial. In other words, the differences are so great between the songs that there’s no question that Blurred Lines doesn’t infringe Got to Give it Up. They also argued that the Gaye family held the copyright to just the sheet music, so that certain elements in the sound recording that weren’t in the sheet music were of no consequence.

The judge just disagreed with that. That doesn’t mean the judge thinks Thicke will, or should lose, just that there’s a question to be resolved.

Here’s a comparison of the songs on YouTube. If it gets taken down, search for it. I’m sure someone will put up something similar.

So, lets say you watch the video and think “wow, that’s blatant copying, how could they even suggest otherwise in this motion?” The answer is, it would probably be malpractice to not at least try everything you can to resolve this in favor of the clients. And, more work means the lawyers get to bill more...but really, it’s probably more about avoiding malpractice.