Moana, Marvin Gaye and the Problem of Proving Infringement

On March 10, 2015, a jury awarded the estate of Marvin Gaye $7.4 million in damages in the famous “Blurred Lines” case.

In that case, the estate alleged that the 2013 Robin Thicke song Blurred Lines infringed on Gaye’s 1977 song Got to Give it Up. Most observers, including myself, viewed this as a surprising upset.

However, those in the courtroom were far less surprised. They had seen how the case had twisted and turned, particularly Thicke’s poor performance on the stand. Still, it was a shocking award, even if the judge reduced it.

As it became clear that the verdict would hold, it sent shockwaves through the creative industry, particularly the music industry. However, it also became clear that the Blurred Lines verdict was a one-off fluke. Though many similar lawsuits were filed, few saw any success.

A decade later, we have two reminders of why the Blurred Lines case is unique. One involves another Marvin Gaye song, and the other involves the Disney movie Moana.

Ed Sheeran and Moana

In 2018, Structured Asset Sales (SAS) filed a lawsuit against Ed Sheeran and others alleging that the 2014 Sheeran song Thinking Out Loud infringed on the 1973 Marvin Gaye song Let’s Get It On.

SAS owned part of the rights of Gaye co-author Ed Townsend’s share of the song. However, in a separate case, a jury compared the two songs and ruled in favor of Sheeran. This prompted the judge to grant summary judgment to Sheeran.

SAS appealed the decision, but the appeals court upheld the lower court ruling. Now, SAS is appealing to the Supreme Court. However, that is a longshot as it is unlikely that the Supreme Court will even agree to hear the case.

In the Moana case, author and animator Buck Woodall filed a lawsuit against Disney and others connected with the film. Woodall alleged that Moana infringed on his earlier work, Bucky the Surfer Boy.

The judge significantly reduced the lawsuit due to statute of limitations issues but allowed the remaining parts to go to a jury trial.

However, Woodall’s arguments failed to impress the jury. They debated for just 2.5 hours before finding that Disney never had access to Woodall’s work. As such, they never considered the similarities between the works before ruling in favor of Disney.

When put together, the two stories show why proving copyright infringement is incredibly difficult, no matter how clear one thinks the evidence is.

The Many Hurdles of Proving Infringement

If you feel that your work has been infringed, it’s essential to understand the obstacles that you face in proving it.

First, would-be plaintiffs must show that they own a legitimate interest in the infringed work. This is often the easiest step, especially if you have a copyright registration for the work.

Second, a plaintiff has to show that the alleged infringer had access to the infringed work. Since two parties can create similar works independently, see the Dennis the Menace and Repo! The Genetic Opera examples, without some proof of access, there can be no infringement.

After that, plaintiffs must prove that the infringer copied their work. If the copied elements were originally from other works, especially if those predate the “original,” it may not be an infringement of that work.

Finally, a plaintiff would have to prove that the copied elements are protectable by copyright. Copyright only protects the expression of an idea, not the idea itself. If the copied elements cannot be protected by copyright, then no infringement occurred.

In some cases, overcoming these hurdles can be trivial. For example, suing someone who is making pirated DVDs is straightforward. Ownership is straightforward, there is no challenge in proving access and it’s clear both what work was copied and that all elements were used.

But in cases like the Moana and Ed Sheeran cases, things get more difficult.

With the Moana case, Woodall fell at the second hurdle. He couldn’t, to the jury’s satisfaction, prove Disney had access to his work. In the Sheeran case, SAS could easily prove access because of Gaye’s popularity but failed to prove that the similarities were protectable by copyright.

Any one of these hurdles can stall a copyright infringement case, and the hurdles get higher and higher the less similar the works involved are.

That’s a grim reality for many who are considering bringing a copyright infringement case.

Bottom Line

One of the challenges I regularly deal with is trying to align the issues of plagiarism, which looks at the ethics of attribution and citation, with the legal issues of copyright, which are legal rights that focus on the commercial aspects of a work.

People can feel that they are victims of plagiarism for almost any reason. Sometimes, it is simply that they see patterns where there are none. However, even if one can prove that the plagiarism happened, it doesn’t mean it was a copyright infringement. Even if it’s a copyright infringement, that doesn’t mean one can prove it in court.

The truth is that even in some cases where copying is clear, it can still be difficult or impossible to prove copyright infringement. That bodes worse for the cases above, where it is unclear if any copying occurred.

That, in turn, is what makes the Blurred Lines case such a fluke. The case overcame several hurdles, but only a few seemed possible initially. Though there wasn’t much doubt about ownership or access, proving copying, particularly copying of original work that rose to copyright infringement, was much more difficult.

The Gaye estate succeeded where nearly all others failed. While that was great for headlines ten years ago, it’s why the case has become much more obscure in the decade since. Despite fears that it would change creativity forever, that never happened.

Looking at these cases, it’s clear why rightsholders face an uphill battle when trying to prove infringement.