A hotly disputed legal issue between the majority and dissent in the recent, highly publicized, U.S. Court of Appeals for the Ninth Circuit “Blurred Lines” decision in Williams v. Gaye, No. 15-56880, concerned whether Marvin Gaye’s 1976 hit song “Got to Give it Up” was entitled to “broad” or “thin” copyright protection. The Ninth Circuit panel, in a 2-1 decision over a vigorous dissent, upheld the jury’s determination that Pharrell Williams and Robin Thicke’s “Blurred Lines,” which was the worldwide No. 1 song in 2013, infringed Gaye’s work.

The panel’s determination that the musical compositions at issue were entitled to “broad” copyright protection was critical to the outcome of the case because if a work is determined to be entitled to “thin” copyright protection, then proving infringement requires showing the works are “virtually identical.”  In contrast, establishing infringement for a work that enjoys “broad” copyright protection only requires showing that the works are of “substantial similarity,” making it much easier to prove infringement.

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