By Thomas Long, J.D.
A divided panel of the U.S. Court of Appeals in San Francisco has affirmed a district court’s judgment, after a jury trial, that "Blurred Lines" songwriters and pop stars Robin Thicke and Pharrell Williams are liable for approximately $5.3 million in damages to the heirs of the late Marvin Gaye for infringing Gaye’s copyright in the 1977 hit "Got to Give It Up." The appellate court held that "Got to Give It Up" was entitled to broad copyright protection, although it accepted the district court’s ruling that the copyright’s scope was limited under the 1909 Copyright Act to the sheet music and did not extend to sound recordings. The infringement verdict was supported by evidence and was not the result of erroneous jury instructions. The court reversed, however, the district court’s decision to overturn the jury’s general verdict in favor of rapper and composer Clifford Harris, Jr., and the record companies that produced and distributed "Blurred Lines" because Gaye’s heirs waived any challenge to the consistency of the jury’s general verdicts. In addition, according to the appellate court, there was no evidence showing that Harris was vicariously liable for copyright infringement. Circuit Judge Jacqueline H. Nguyen dissented, opining that that "Blurred Lines" and "Got to Give It Up" were not objectively similar and that the Thicke Parties were entitled to judgment of noninfringement as a matter of law (Williams v. Gaye, March 21, 2018, Smith, M.).
Works at issue. Marvin Gaye recorded the song "Got to Give It Up" in 1976 at his studio. The song was released in 1977 on the album Live at the London Palladium and reached number one on the U.S. Billboard Hot 100 charts. Released in March 2013, "Blurred Lines," performed by Thicke, became an instant hit, selling more than six million digital copies.
Copyright dispute. In August 2013, Williams, Thicke, and Harris filed suit against the current copyright owners—Gaye’s heirs, Nona Marvisa Gaye, Frankie Christian Gaye, and Marvin Gaye III—seeking a declaration that their composition "Blurred Lines" did not infringe the copyright covering "Got to Give It Up." Gaye’s heirs filed counterclaims for infringement against Williams, Thicke, Harris, and the recording companies involved in the production of "Blurred Lines," including More Water from Nazareth Publishing, Inc. ("the Thicke Parties").
Denial of summary judgment. Prior to trial, in October 2014, the district court had decided that Williams, Thicke, and Harris were not entitled to summary judgment of noninfringement. After examining the findings of experts, the court determined that the heirs had made a sufficient showing that the protected elements of "Blurred Lines" could be substantially similar to protected, original elements of "Got to Give It Up." There were genuine issues of material fact as to whether relevant components of "Got to Give It Up"—specifically, its 11-note signature phrase, four-note hook, four-bar bass line, 16-bar harmonic structure, and four-note vocal melody—were protectable expressions. There was enough evidence for a jury to find substantial similarity between the protectable elements of the songs, the district court also held.
Jury verdict. After a two-week trial, the jury determined on March 10, 2015, that Gaye’s heirs sustained $4 million in actual damages as a result of Thicke and Williams’ infringement. In addition, the jury determined that Williams and Thicke realized profits attributable to their infringement in the amounts of $1,610,455 and $1,768,191, respectively. Statutory damages were awarded in the amount of $9,375. Although Thicke and Williams were found to have infringed the copyright in "Got to Give It Up," the jury decided that their infringement was not willful in nature. The jury also found that the infringement was not "innocent." The jury also determined that Harris and Interscope Records, UMG Recordings, Inc., Star Trak Entertainment, LLC, and Universal Music Distribution ("the Interscope Parties") were not liable for infringement.
Post-trial motions. In July 2015, the court trimmed over $2 million from the jury’s $7.3 million damages award and determined that that Harris and the Interscope Parties were liable for copyright infringement as a matter of law, despite the verdict in their favor, based on the jury’s finding that "Blurred Lines" infringed the copyright in "Got to Give it Up." The district court also decided that Gaye’s heirs were entitled to an ongoing royalty of 50% of all future songwriter and publishing revenues from "Blurred Lines." On April 12, 2016, the district court denied the Gayes’ motion for attorney fees.
Appeals. The Thicke Parties appealed, urging the Ninth Circuit to reverse the district court’s denial of their motion for summary judgment and direct the district court to enter judgment in their favor, or to vacate the judgment and remand for a new trial. They also requested, if a new trial is not ordered, that the appellate court vacate the actual damages and profits awards and the imposition of a running royalty. Harris sought reversal of the judgment against him. The Interscope Parties also appealed, challenging the district court’s decision to overturn the jury’s general verdict finding in their favor. The Gayes appealed from the district court’s decision not to grant their motion for attorney fees, as well as the district court’s ruling limiting the scope of the Gayes’ compositional copyright to the sheet music deposited with the Copyright Office.
Scope of copyright. The Ninth Circuit rejected the Thicke Parties’ argument that the Gayes’ copyright enjoyed only thin protection. Because a musical composition was not capable of ready classification into only five or six constituent elements, but consisted of a large array of elements, the "substantial similarity" standard of infringement was appropriate, rather than a stricter standard.
Because "Got to Give It Up" was composed before January 1, 1978—the effective date of the Copyright Act of 1976—the Copyright Act of 1909 governed the Gayes’ compositional copyright. The district court determined that copyright protection under the 1909 Act extended only to the "four corners" of the sheet music deposited with the Copyright Office. Therefore, the district court did not consider the sound recording of the song in its analysis. The Ninth Circuit decided that because it was not ordering a new trial, it did not need to resolve the question, and for purposes of this appeal, it accepted the district court’s decision on the issue without deciding the merits of it.
Review of denial of summary judgment. The district court’s order denying summary judgment was not reviewable after a full trial on the merits, the appellate court held. The Thicke Parties’ appeal of that denial did not present purely legal questions involving undisputed facts; the district court’s substantial similarity analysis was a fact-intensive inquiry. Therefore, the Ninth Circuit declined to review the denial of summary judgment.
Jury instructions. A new trial was not warranted on the basis of two jury instructions that the Thicke Parties argued were erroneous. The Thicke Parties argued that the first challenged instruction (Instruction 42) allowed the jury to place undue weight on Williams’ and Thicke’s statements claiming that they were inspired by "Got to Give It Up" and Marvin Gaye when they composed their work. Instruction 42 stated, "In order to find that the Thicke parties copied either or both of the Gaye Parties’ songs, it is not necessary that you find that the Thicke Parties consciously or deliberately copied either or both of these songs. It is sufficient if you find that the Thicke Parties subconsciously copied either or both of the Gaye Parties’ songs." The appellate court noted that the Thicke Parties acknowledged that there was no scienter requirement for infringement liability; copying was usually shown via evidence of access to the asserted work and substantial similarity between protectable elements of the asserted work and the allegedly infringing work. Access could be based on a theory of widespread dissemination and subconscious copying. Under the "inverse ratio rule" applied in the Ninth Circuit, the stronger the showing of access to the asserted work, the lesser the showing of substantial similarity that was required to establish infringement. Furthermore, the instructions as a whole made it clear that proving copying by circumstantial evidence required not just a showing of access, but also of substantial similarity. Instruction 42 did not err in its statement of the law, the appellate court decided.
The other challenged instruction (Instruction 43) stated, in part, that the Gayes "must show that there is both substantial ‘extrinsic similarity’ and substantial ‘intrinsic similarity’ as to that pair of works." According to the Thicke Parties, Instruction 43 erroneously instructed the jury to consider unprotectable elements of "Got to Give It Up" that were not present in the deposit copy of the sheet music. The appellate court disagreed. Expert witnesses disagreed as to whether the elements in question—a musical theme known as "Theme X," the descending bass line, and the keyboard parts—were reflected in the deposit copy. This was a factual issue for the jury to decide. Even if Instruction 43 led the jury to believe that those elements were present in the deposit copy, the instruction could not be viewed in isolation, the court said. In light of the instructions as a whole, it could not be said that the listing of song elements in Instruction 43 prevented the jury from making a factual finding as to what was in the deposit copy. The jury never heard the sound recording, the court noted, and the district court made it clear that the deposit copy, not the commercial sound recording, was the copyrighted work at issue.
Expert testimony. Nor was it error for the district court to admit portions of expert testimony presented by the Gayes regarding "Theme X," the descending bass line, and the keyboard parts, the appellate court said. The witnesses testified that these elements were present in the deposit copy, and they were cross-examined on this matter. The jury was free to weigh their testimony as they saw fit.
Evidentiary support for verdict. The verdict was not against the clear weight of the evidence, the court held, rejecting the Thicke Parties’ argument that there was no extrinsic or intrinsic similarity between the two songs. The court noted that it was generally reluctant to disturb a jury’s factual findings. Moreover, its review was deferential when the district court had concluded that the jury’s verdict was supported by evidence. The Gayes’ experts testified that nearly every bar of "Blurred Lines" contained an area of similarity to "Got To Give It Up." Even disregarding "Theme X," the bass line, and the keyboard parts, the experts testified regarding multiple other areas of extrinsic similarity, including the songs’ signature phrases, hooks, bass melodies, word painting, the placement of the rap and "parlando" sections, and structural similarities on a sectional and phrasing level.
Actual damages, profits, running royalty. The Ninth Circuit affirmed the lower court’s rulings on damages. The actual damages award of 50% of the publishing revenues for "Blurred Liens" was not based on undue speculation but was supported by the testimony of a witness with particular expertise in negotiating and assigning valuations for the use of portions of older musical compositions in newer compositions. There was no evidence of a prior benchmark license agreement between the Thicke Parties and the Gayes that would contradict the 50% figured arrived at by the expert witness. The profits award was not clearly erroneous, the court said, because the jury was entitled to give more weight to the Gayes’ expert than to the Thicke Parties’ expert. Finally, the district court did not abuse its discretion in setting a 50% running royalty rate because that rate was also based on expert testimony.
General jury verdict in favor of Harris and Interscope Parties. The district court did err, the Ninth Circuit held, in overturning the jury’s general verdict exonerating Harris and the Interscope Parties. First, the Gayes waived any challenge to the consistency of the jury’s general verdicts by failing to object to the verdicts prior to the jury’s discharge and by failing to move for judgment as a matter of law before the case was submitted to the jury. The district court did not have an obligation to reconcile the jury’s purportedly inconsistent verdicts because there was no indication that the verdicts resulted from inadequate or erroneous jury instructions. In addition, the appellate court stated that there was no evidence that Harris was vicariously liable for copyright infringement. Harris independently wrote and recorded a rap verse that was added to the "Blurred Lines" track several months after Thicke and Williams wrote and recorded the song. There was no indication that Thicke or Williams had added to Harris’s contribution or that had any right to control it.
Attorney fees. The appellate court denied the Gayes’ request to vacate the district court’s denial of attorney fees under Section 505 of the Copyright Act. The district court did not base that decision solely on the objective reasonableness of the losing parties’ positions, but also considered the degree of success obtained, the purposes of the Copyright Act, the chilling effect of attorney fees, motivation, frivolousness, factual and legal unreasonableness, compensation, and deterrence.
Dissenting opinion. Writing in dissent, Circuit Judge Nguyen argued that the majority’s holding permitted the Gayes "to accomplish what no one has before: copyright a musical style." According to Judge Nguyen, "Blurred Lines" and "Got to Give It Up" were not objectively similar. "They differ in melody, harmony, and rhythm," the judge wrote. "Yet by refusing to compare the two works, the majority establishes a dangerous precedent that strikes a devastating blow to future musicians and composers everywhere." In Judge Nguyen’s view, the Gayes’ expert musicologist "cherry-picked brief snippets" to support her opinion that a "constellation" of elements in both pieces of music—each of which alone were unprotectable—made the works substantially similar. "That might be reasonable if the two constellations bore any resemblance," Judge Nguyen said. "But Big and Little Dipper they are not. The only similarity between these ‘constellations’ is that they’re both compositions of stars." Courts should not simply defer to the conclusions of experts about the ultimate finding of substantial similarity, Judge Nguyen argued, stating that, in this case, the protectable elements of the works did not support a finding of substantial similarity. Therefore, she opined that the infringement verdict should be vacated.
The case is No. 15-56880.
Attorneys: Kathleen M. Sullivan (Quinn Emanuel Urquhart & Sullivan LLP) and Howard E. King (King, Holmes, Paterno & Soriano, LLP) for Pharrell Williams, Clifford Harris Jr., Robin Thicke, and More Water from Nazareth Publishing Inc. Mark E. Haddad (Sidley Austin LLP) for Star Trak Entertainment, Interscope Records, UMG Recordings Inc., and Universal Music Distribution. Lisa Blatt (Arnold & Porter LLP), Paul H. Duvall (King & Ballow), Mark L. Block (Wargo & French LLP), and Paul N. Philips (Law Offices of Paul N. Philips APLC) for Frankie Christian Gaye, Marvin Gaye III, and Nona Marvisa Gaye.
Companies: More Water from Nazareth Publishing Inc.; Star Trak Entertainment; Interscope Records; UMG Recordings Inc.; Universal Music Distribution
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