“Blurred Lines” to “Stairway to Heaven”: Applicability of Selection and Arrangement Infringement Actions in Musical Compositions

In 2015, the “Blurred Lines” verdict catapulted the issue of music copyright infringement into
the news. The Ninth Circuit upheld the jury verdict in favor of the Marvin Gaye estate in 2018,
shocking the legal and music communities who worry that songwriters can now copyright a vibe.
Typically, copyright infringement occurs if someone copies a “substantial” amount of original
and protected elements. The Gaye estate’s theory, however, was that Pharrell Williams and Robin Thicke took a “constellation” of unprotected elements from Gaye’s song, “Got To Give It Up,” and should thus be liable for infringement. The jury agreed and found Williams and Thicke liable for 7.4 million dollars in damages. This led to a ripple effect of copyright infringement cases in popular music, leading the Ninth Circuit to publish an en banc decision involving Led Zeppelin’s “Stairway to Heaven.” There, however, the court affirmed a jury verdict finding that Led Zeppelin did not infringe on the copyright for the song “Taurus” by Spirit. The plaintiff there also argued that Led Zeppelin took a combination of unprotected elements. How can these arguments survive summary judgment? And why did the Ninth Circuit let the “Blurred Lines” jury verdict stand? A close examination of Ninth Circuit precedent reveals that this result was not actually that surprising. The use of the constellation theory, however, poses unique issues involving musical composition copyrights that the Ninth Circuit only began to address in the “Stairway to Heaven” case. This Comment examines this theory of copyright infringement for musical compositions, including its origins, why courts should hesitate before applying it in music copyright cases going forward, and why reliance on this theory should generally entitle musical compositions to only thin copyright protection.


About the Author

Emily Ranger-Murdock (Smith), J.D., UCLA School of Law, 2020, specializing in Media, Entertainment and Technology Law and Policy; B.S. in Applied Psychology, NYU, 2012.