Williams and Thicke filed their preemptive lawsuit in August 2013 seeking a declaration of non-infringement. This past July, the plaintiffs suggested in their own summary judgment papers that the Gayes "smelled money" when asserting a copyright infringement. The Gaye children indeed fired counterclaims in October 2013, but they want it noted who sued first.
According to the Gayes' bid for summary judgment, "Not only was it, therefore, Thicke and Williams who actually 'smelled money,' but it was they who then played the role of bully by suing Marvin Gaye's children when the Gaye children had the temerity to question why their father was not credited, or why 'Got to Give it Up' was not licensed, betting that the Gaye children would not have the will or resources to fight this battle. Thicke and Williams bet wrong, and they will now have to face the consequences of their misjudgment and their blatant copyright infringement."
The counter-claimants look to use statements from Williams and Thicke as admissions of guilt. Unfortunately, much of the deposition testimony has been sealed and redacted, but according to a declaration by the Gayes' lawyer Richard Busch, Williams has stated that he envisioned himself as Marvin Gaye while making the song. Other media interviews are cited as well. In one, Thicke said that "Got to Give it Up" is one of his "favorite songs of all time" and that he went into the studio and said, "You know Pharrell I'd love to make something like this."
In theory, the Gaye children should have an easier time on their counterclaims than most plaintiffs in copyright litigation. Under what's known as the "inverse ratio rule," a lower standard of proof of similarity is necessary when a high degree of "access" is shown. The Gaye children say that with or without the application of the inverse-ration rule, they should prevail.
To that end, they have produced for the judge's ears a mash-up —quite possibly the first time ever in a courtroom that a mash-up has been exploited to prove copyright infringement. In the recording, the vocal material of "Blurred Lines" plays over the instrumental of "Got to Give It Up," and vice versa. "This material sounds like a perfect, natural match because it blends sonically," says the summary judgment memorandum.
If that's not enough, the Gayes have two expert musicologists describing eight substantial similarities: "(1) the signature phrase in the main vocal melodies; (2) the hooks; (3) the hooks with backup vocals; (4) the core theme in 'Blurred Lines' and backup hook in 'Got to Give it Up'; (5) the backup hooks; (6) the bass melodies; (7) the keyboard parts; and (8) the unusual percussion choices."
As a preemptive strike, the plaintiffs dismissed these as "unprotectable, commonplace ideas," but the counterclaimants retort they are distinctive. Take the bass melodies, for instance. Both songs are said by the musicologists to have "two-measure phrases, which leave space in the middle of each of the bars, rhythms, and points of harmonic arrival. This is not simply an element of a genre, as it is unusual to have bass lines in R&B that leave this much space in the middle of the bar."
The Gayes also reject the notion that other songs constitute prior art. War's "Low Rider" isn't "rhythmically similar," they say; Curtis Mayfield's "Superfly" isn't "consistent with the disco pattern in the songs here"; and the cowbell on Lipps Inc.'s "Funkytown" "plays continuous sixteenth notes rather than a Latin time keeping rhythm."
The full summary judgment papers, available at The Hollywood Reporter's website, also argue why Thicke's "Love After War" should be seen as an infringement of Gaye's "After the Dance." Finally, attorneys for the Gaye children attempt to convince U.S. District Judge John Kronstadt on the legal standards on which to weigh both songs when ruling.
"They filed papers insulting the family of the great Marvin Gaye," says Busch. "We responded with the facts and the law. Beyond that, everything we have to say is in our papers, including the expert reports and audio files submitted therewith."
The decision should be coming in the coming months. A jury trial has been scheduled for Feb. 10, 2015.
This article was originally published by The Hollywood Reporter.