Can You Copyright a Vibe?

Every creator is influenced by something.

A musician hears a song and loves its groove. A designer sees packaging and likes the aesthetic. A business owner finds a competitor's website and tells their designer, "I want something that feels like this."

That's how creativity works. We absorb ideas, styles and influences and use them to create something new.

But where is the line between inspiration and copyright infringement?

Few cases have tested that boundary quite like the dispute over Robin Thicke and Pharrell Williams' 2013 hit Blurred Lines.

The case became one of the most controversial copyright disputes in modern music — not because anyone alleged that the songs were identical, but because Blurred Lines was said to capture something much harder to define: the feel of Marvin Gaye's 1977 song Got to Give It Up.

It raises a fascinating question for anyone who creates things for a living:

Can you copyright a vibe?

Why did Blurred Lines end up in court?

When Blurred Lines became a worldwide hit, listeners quickly began comparing it with Marvin Gaye's Got to Give It Up.

But this wasn't a straightforward allegation of copying.

The lyrics weren't the same. There wasn't a direct sample of Gaye's recording. Nor was the case simply about an identical melody being lifted from one song and placed into another.

Instead, the similarities involved elements such as rhythm, bass lines, keyboard parts, percussion and aspects of the songs' structure and arrangement.

Taken together, the Gaye family argued that the creators of Blurred Lines had copied protected elements of Got to Give It Up.

A US jury agreed.

In 2015, the jury found that Blurred Lines infringed the copyright in Gaye's composition. The litigation ultimately resulted in substantial damages and an ongoing share of certain royalties, and significant aspects of the verdict survived appeal.

But the result also triggered a much larger debate.

Copyright doesn't usually give you ownership of a style

One of the fundamental principles underlying copyright is that it does not give someone ownership of an idea merely because they expressed it first.

Copyright protects the particular expression of an idea.

That distinction matters enormously.

Taylor Swift doesn't own country music.

The Bee Gees don't own disco.

Nobody owns the concept of a funky bass line, a retro aesthetic or a particular musical era.

If copyright protection extended too far into genres, styles and general creative techniques, creating anything new would become extraordinarily difficult.

Music provides an obvious example, but the same issue exists everywhere.

A photographer can be influenced by another photographer's aesthetic.

A fashion designer can draw inspiration from an era.

A filmmaker can work within the conventions of a genre.

A business can embrace a minimalist visual identity because that style is popular in its industry.

Influence isn't an unfortunate side effect of creativity.

Influence is part of creativity.

So why was the Blurred Lines decision controversial?

The concern among many musicians, academics and copyright lawyers was that the decision appeared to move dangerously close to protecting the overall "feel" of a song.

That creates a difficult problem.

If sounding influenced by an earlier artist can amount to infringement, how does a later artist know when they have crossed the line?

Every creative movement builds upon what came before it.

Rock musicians were influenced by earlier blues musicians. Hip-hop has a long tradition of referencing and recontextualising earlier music. Contemporary pop borrows constantly from previous decades.

That doesn't mean copyright disappears.

But it does mean the distinction between protected expression and unprotected influence is critically important.

Interestingly, the appellate decision itself demonstrated how contentious that distinction was. The case produced a notable dissent warning about the potential consequences of allowing copyright protection to extend too far into musical building blocks and style.

The Blurred Lines case therefore became about something much larger than two songs.

It became a debate about how much creative freedom copyright law needs to leave for the next creator.

Would the result necessarily be the same in Australia?

Not necessarily.

Australian copyright law has its own framework for determining infringement.

Broadly, the question is whether someone has reproduced the whole or a substantial part of a copyright work without permission.

And "substantial" doesn't simply mean large.

The assessment is qualitative as well as quantitative.

A relatively small part of a work can potentially be substantial if what has been taken is particularly important, distinctive or original.

Conversely, showing that two works have a similar atmosphere or aesthetic does not automatically establish infringement.

You still need to identify the copyright work, the protectable expression said to have been copied, and whether what has been reproduced amounts to a substantial part.

That's an important distinction for Australian businesses and creators.

This isn't just a problem for musicians

The same issue arises constantly in commercial creative work.

Imagine telling a web designer:

"I love Apple's website. Make ours feel like that."

That's very different from saying:

"Copy Apple's website, replace their logo with ours and change the colours."

The first is a creative reference.

The second creates a very different risk profile.

The same issue can arise with:

• product packaging;
• advertising campaigns;
• photographs and videos;
• website designs;
• illustrations;
• written content;
• social media campaigns;
• software interfaces; and
• brand collateral.

Businesses often get into trouble because the brief starts with "make it like this", and nobody stops to consider how closely the finished product follows the reference material.

We've seen this question before

This isn't the first time I've explored the distinction between inspiration and copying on Elise Explains IP.

In Episode 7, I looked at Aldi's well-known strategy of creating products and packaging that can call competing brands to mind.

Those disputes involve different areas of intellectual property law, but the commercial question is remarkably similar:

How close is too close?

A business may legitimately take inspiration from what competitors are doing. Competition naturally produces similarities.

But the closer you move from adopting an idea or trend towards reproducing the distinctive elements of someone else's work, the greater the risk becomes.

Five practical lessons for creators and businesses

1. References should be starting points, not instructions to copy

Mood boards, competitor examples and creative references can be useful.

The problem arises when the reference effectively becomes the specification.

If you're briefing an agency, designer, photographer or copywriter, encourage them to understand why you like the reference rather than simply reproducing what they see.

2. Ask what is actually being borrowed

"I like the vibe" can mean many things.

Is it the colour palette?

The simplicity?

The humour?

The photographic style?

The layout?

The rhythm?

Breaking down what you actually like makes it easier to take inspiration from the underlying idea without reproducing someone else's particular expression of it.

3. Bring something of your own to the work

The safest — and usually commercially strongest — creative work isn't a slightly altered version of somebody else's.

It takes influences and transforms them.

Ask:

What are we adding that makes this recognisably ours?

That isn't only a copyright question. It's a branding question.

If your creative work is indistinguishable from your competitors', you may have a bigger strategic problem even if it doesn't technically infringe copyright.

4. Keep records of the creative process

Drafts, sketches, briefs and iterations can help demonstrate how a work developed.

That can become particularly useful if someone later alleges that their work was copied.

It also helps businesses establish who actually created their intellectual property and what contractual arrangements governed that creation.

5. Don't assume saying "inspired by" solves the problem

Calling something an homage, inspiration or tribute doesn't determine whether copyright has been infringed.

The question is what has actually been reproduced.

If protected expression has been copied, describing the work as "inspired by" doesn't make that issue disappear.

The real lesson from Blurred Lines

The Blurred Lines case is fascinating because there isn't anything unusual about artists influencing one another.

That's how culture develops.

The difficult question is what happens next.

The question isn't whether inspiration exists. The question is what you do with it.

Successful creators don't simply reproduce existing works.

They interpret them. Transform them. Bring their own perspective to them. Build upon what came before and create something new.

And from an intellectual property perspective, that's often where the real value lies.

Want to know what IP your business actually owns?

If you're building a brand, creating content, developing products or working with external creatives, it's worth understanding what intellectual property sits inside your business — and whether you actually own and protect it.

You can use my free IP Audit tool at www.elisesteegstra.com/ip-audit to identify some of the intellectual property issues worth considering in your business.

Or, if you need advice about a particular copyright or intellectual property issue, you can book a Strategy Call through www.elisesteegstra.com.

Disclaimer: This podcast and accompanying article are intended for general educational purposes only and do not constitute legal advice. You should obtain advice tailored to your circumstances before acting on any information discussed.