The US Court of Appeals for the Ninth Circuit has upheld the 2015 jury verdict which found that Robin Thicke and Pharrell Williams' 2013 hit 'Blurred Lines' infringed on the copyright in Marvin Gaye's 1977 song 'Got To Give It Up'. The decision had attracted widespread criticism and comment, not least as many commentators felt that the jury made their decision by comparing the 'sound' or vibe of the songs, rather than the actual song itself. The appellate panel's decision was a split decision, 2-1, with a scathing dissent from US Circuit Judge Jacqueline Nguyen who is openly critical of the majority and said that the Marvin Gaye Estate had been able to “accomplish what no one has before: copyright a musical style.” The decision means that Thicke and Williams remain liable for $5.3m in damages and ongoing royalties to the Marvin Gaye Estate from future revenues earned from 'Blurred Lines'.
The majority of the panel (Judge Milan D. Smith, Jr and Judge Mary H Murguia) held that “Got To Give It Up” was entitled to broad copyright protection because musical compositions are not confined to a narrow range of expression. That said, the panel accepted, without deciding, the merits of the district court’s ruling that the scope of the defendants’ copyright was limited, under the Copyright Act of 1909, to the sheet music deposited with the Copyright Office, and did not extend to sound recordings.
The panel held that the district court’s order denying summary judgment was not reviewable after a full trial on the merits. The panel held that the district court did not err in denying a new trial. The district court properly instructed the jury that there is no scienter requirement for copyright infringement and that it must find both access and substantial similarity. The district court did not erroneously instruct the jury to consider unprotectable elements of “Got To Give It Up.” The district court did not abuse its discretion in admitting expert testimony. In addition, the verdict was not against the clear weight of the evidence because there was
not an absolute absence of evidence of extrinsic and intrinsic similarity between the two songs. The panel held that the district court’s award of actual damages and infringers’ profits and its running royalty were proper.
Reversing in part, the panel held that the district court erred in overturning the jury’s general verdict in favor of certain parties because the defendants waived any challenge to the consistency of the jury’s general verdicts. In addition, there was no duty to reconcile the verdicts. The district court erred in finding one party secondarily liable for vicarious infringement. To that end rapper Clifford "TI" Harris and Interscope Records were not liable for any infringement holding:
"Harris and the Interscope parties contend that the district court erred in overturning the jury's general verdicts finding in their favour. We agree. First, the Gayes waived any challenge to the consistency of the jury's general verdicts. Second, even had the Gayes preserved their challenge, neither Federal Rule of Civil Procedure 50(b) nor our decisions in Westinghouse and El-Hakem v. BJY Inc, conferred authority on the district court to upset the jury's verdicts in this case. Third, as to Harris specifically, the district court erred for the additional reason that no evidence showed Harris was vicariously liable".
The panel held that the district court did not abuse its discretion in denying the defendants’ motion for attorneys’ fees under § 505 of the Copyright Act or in apportioning costs among the parties.
The majority of the appeals court also disagreed the proposition that the two tracks "differed in melody, harmony, and rhythm". In dissent Judge Nguyen said that the ruling "strikes a devastating blow to future musicians and composers everywhere”.
It will be Judge Nguyen's dissent which will no doubt attract the most attention. In her strongly worded opinion she says “ 'Blurred Lines’ and ‘Got to Give It Up’ are not objectively similar” and that the two songs "differ in melody, harmony, and rhythm. 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.”
"While juries are entitled to rely on properly supported expert opinion in determining substantial similarity, experts must be able to articulate facts upon which their conclusions—and thus the jury’s findings—logically rely. Here, the Gayes’ expert, musicologist Judith Finell, cherrypicked brief snippets to opine that a “constellation” of individually unprotectable elements in both pieces of music made them substantially similar. That might be reasonable
if the two constellations bore any resemblance. But Big and Little Dipper they are not. The only similarity between these “constellations” is that they’re both compositions of stars.
The case certainly brings up questions of how expert evidence should be viewed by the court: Again and at the end of her opinion Judge Nguyen is critical of the role of the musicologists in this case saying "Admittedly, it can be very challenging for judges untrained in music to parse two pieces of sheet music for extrinsic similarity. But however difficult this exercise, we cannot simply defer to the conclusions of experts about the ultimate finding of substantial similarity. While experts are invaluable in identifying and explaining elements that appear in both works, judges must still decide whether, as a matter of law, these elements collectively support a finding of substantial similarity. Here, they don’t, and the verdict should be vacated.
Noting that "In assessing the similarity of two pieces of music, it’s important to keep in mind “the limited number of notes and chords available to composers and the resulting fact that
common themes frequently reappear in various compositions, especially in popular music.”
and that "Not all expression is protectable. Originality, the “sine qua non of copyright,” accommodates authors’ need to build on the works of others by requiring copyrightable expression to be “independently created by the author” and have “at least some minimal degree of creativity and that "If an author uses commonplace elements that are
firmly rooted in the genre’s tradition, the expression is unoriginal and thus uncopyrightable" Judge Nguyen adds: "The Gayes, no doubt, are pleased by this outcome. They shouldn’t be. They own copyrights in many musical works, each of which (including “Got to Give It Up”) now potentially infringes the copyright of any famous song that preceded it ... That is the consequence of the majority’s uncritical deference to music experts."
Judges Smith and Murguia in the majority countered with :"Our decision hinges on settled procedural principles and the limited nature of our appellate review, dictated by the particular posture of this case and controlling copyright law. Far from heralding the end of musical creativity as we know it, our decision, even construed broadly, reads more accurately as a cautionary tale for future trial counsel wishing to maximise their odds of success". They are forthright on Judge Nguyen's dissent: "The dissent's position violates every controlling procedural rule involved in this case" and they say "The dissent improperly tries, after a full jury trial has concluded, to act as judge, jury and executioner" and "Our decision does not grant license to copyright a musical style or 'groove'" and they add "Nor does it upset the balance Congress struck between the freedom of artistic expression, on the one hand, and copyright protection of the fruits of that expression, on the other hand".
The central issues raised in the case are far from settled - and up next there is the Led Zeppelin 'Stairway To Heaven' appeal which is pending before the Ninth Circuit in a claim brought on behalf of late Spirit songwriter Randy Wolfe's estate that says that the heavy rock classic copies the riff found on Spirit's instrumental "Taurus".
Williams v Gaye No. 15-56880 D.C. No. 2:13-cv-06004-JAK-AG
https://www.rollingstone.com/music/news/appeal-filed-in-led-zeppelin-stairway-to-heaven-trial-w472692 and http://www.musiclawupdates.com/?p=5821
Blurred Lines: The difference between inspiration and appropriation By Ben Challis (September 2015) here http://www.wipo.int/wipo_magazine/en/2015/05/article_0008.html
UPDATE: A very useful article on Billboard here https://www.billboard.com/articles/news/8257580/blurred-lines-appeal-pharrell-robin-thicke-marvin-gaye-legal-analysis which also discuss the possible approaches to an appeal by Thicke and Williams - an en banc review by the 9th Circuit, or an appeal to the Supreme Court?
and see https://abovethelaw.com/2018/03/blurred-lines-can-you-copy-a-music-genre/
An appeal for the 9th Circuit to hear the case 'en banc' has been filed in behalf of Williams and Thicke https://www.hollywoodreporter.com/thr-esq/pharrell-williams-robin-thicke-want-shot-at-blurred-lines-appeal-1102116 The petition for the rehearing argues that this case conflicts with the court's prior copyright decisions and presents exceptionally important issues and "If a copyright holder can now get to a jury simply by proffering an expert to opine that a song's elements are substantially similar to an accused song, without any objective comparison by the court, no musical work is safe from the prospect of copyright liability."