By: Seth Kirby
Unless you were living under a rock for all of 2013, it was impossible to avoid hearing Robin Thicke's hit song "Blurred Lines." During the summer of 2013 it was played on every radio format on a near constant rotation. Thicke performed it on the Today Show, he performed it using schoolhouse instruments on Late Night with Jimmy Fallon and gave a now infamous performance of the song with Miley Cyrus on MTV. While the song generated controversy due to its lyrical content, there is no question that it was a very catchy tune. But have you ever wondered, why is this song so appealing to the ear? It seems that people just can't help but bob their heads and futilely try to sing along with Thicke's high pitched vocals.
Some have suggested that the reason the song feels so familiar and welcomed is because it is a rip-off of the Marvin Gaye song "Got to Give it Up." Indeed, the Gaye family complained of impermissible similarities between the songs and asked EMI (Gaye's record label) to directly pursue a copyright infringement action on behalf of the Gaye estate. EMI refused to institute the action and were later sued by the Gaye family for its inaction. The Gaye's suit against EMI was settled in January, but the underlying dispute between the Gaye family and Thicke has not yet been resolved.
What does this have to do with insurance? The answer lies in the procedure utilized by Thicke to get out in front of this particular controversy. Rather than simply wait to be sued by the Gaye family, Thicke and his label affirmatively filed a declaratory judgment action seeking the court's declaration that "Blurred Lines" does not impermissibly infringe on any other copyrights. By doing so, Thicke and his label were able to frame the dispute for the court and affirmatively assert their argument for why their song was unique. In essence, they have argued that "Blurred Lines" is a homage to the style and sound of Marvin Gaye as well as the sound and style of the bands Parliament and Funkadelic. Thicke noted that these are artists who he respects and reveres, but claims that he did not copy anything other than their musical style, which is not subject to copyright protection. Of course, the Gaye family filed a counter-claim in this action asserting their claims of copyright infringement, but they occupy the status of "defendant" and ironically missed an opportunity to "set the tone" of the litigation.
The declaratory judgment action utilized by Thicke is an invaluable tool for an insurance company faced with a difficult and/or contested coverage determination. Affirmatively presenting a coverage dispute to a court in a declaratory judgment action takes time and resources, but, it allows the carrier to frame the dispute in the most favorable light possible, thereby maximizing the chances for success. It also provides protection by establishing that the carrier is seeking a judicial determination of a contested issue rather than simply standing on its own coverage analysis. I applaud Thicke and his label for utilizing a declaratory judgment action to get in front of their controversy with the Gaye family. It is a white hat that carriers should don early and often.