Ninth Circuit Sides With Gaye Family in ‘Blurred Lines’ Fight

In this combination photo, Robin Thicke performs at the Teen Choice Awards in Los Angeles on Aug. 16, 2015, left, and Pharrell Williams attends the 2016 ABFF Awards: A Celebration of Hollywood in Beverly Hills, Calif., on Feb. 21, 2016. (Photo by Matt Sayles/Invision/AP, File)

PASADENA, Calif. (CN) – A Ninth Circuit panel on Wednesday upheld a $5.3 million copyright infringement verdict against pop stars Robin Thicke and Pharrell Williams over their 2013 hit “Blurred Lines.”

The three-judge panel ruled 2-1 to uphold a jury’s verdict finding “Blurred Lines” infringed a copyright held by Motown legend Marvin Gaye’s children for his song “Got to Give It Up.”

According to the panel, “Got to Give It Up” is entitled to broad copyright protection because “musical compositions are not confined to a narrow range of expression.”

The panel also accepted a federal judge’s limiting the scope of the Gaye’s copyright to the sheet music deposited with the Copyright Office, and that it does not extend to sound recordings.

In 2015, after a seven-day trial and two days of deliberation, a jury awarded Marvin Gaye’s children Frankie Christian Gaye, Nona Gaye and Marvin Gaye III $7.4 million, which U.S District Judge John Kronstadt later trimmed to $5.3 million.

Thicke, Williams and music industry firms then asked Kronstadt to vacate the jury’s verdict and order a new trial, arguing that expert testimony, as well as submission of Thicke and Williams’ statements to the press and media in promoting the song, were prejudicial

Furthermore, the stars argued, the jury should have not have heard an edited version of “Got to Give It Up,” and jury instructions were flawed. Kronstadt denied the motion for a new trial, finding that “substantial evidence” supported the verdict.

On appeal, musicians lined up to support Thicke and Williams and said the verdict set a precedent to punish artists for creating work inspired by others.

Writing for the panel, Circuit Judge Milan Smith Jr. said Wednesday that Kronstadt did not abuse his discretion in denying a new trial. Furthermore, he said, appeals courts generally do “not review a denial of a summary judgment motion after a full trial on the merits.”

The panel also rejected Thicke and Williams’ claims that jurors were given improper instructions on reviewing the composition and musical elements of Gaye’s original song, and that expert testimony from both parties was not properly considered.

As for the jury instructions, Smith said Kronstadt was not wrong in telling jurors to consider unprotectable elements – even elements not present in the deposited sheet music. While the jury never heard the commercial sound recording, they did hear sound recordings that captured elements of the song which experts then testified were in Gaye’s original track. This was a proper jury instruction, the panel found.

Smith also said Kronstadt properly admitted expert testimony, and that he “vigilantly policed” the inclusion of expert testimony throughout trial. Counsel for both parties were instructed to ensure that expert testimony was directly tied to the sheet music, the panel said.

The panel also upheld the damages award as modified by Kronstadt, except as it applied to rapper T.I., who is featured on the single. While the jury correctly found him not liable, the appellate panel said Kronstadt improperly overturned that portion of the verdict and furthermore no evidence was presented that showed T.I. was vicariously liable for copyright infringement.

As to concerns in the music industry about setting a bad precedent, Smith said that was “unfounded hyperbole” and that the judgment “reads more accurately as a cautionary tale for future trial counsel wishing to maximize their odds of success.”

But in a lengthy dissent, Circuit Judge Jacqueline Nguyen said the majority had allowed “the Gayes to accomplish what no one has before: copyright a musical style.”

Nyugen said her colleagues’ ruling “establishes a dangerous precedent that strikes a devastating blow to future musicians and composers everywhere.”

Copyright protection, Nyugen said, is limited in that it covers only an author’s expression – not the idea underlying that expression.

Nyugen said certain accommodations are necessary because every work of art “borrows, and must necessarily borrow, and use much which was well known and used before.”

Without these accommodations, artists will cease producing art to “society’s great detriment,” Nguyen said.

As for the two songs, Nguyen said they differed in melody, harmony, and rhythm. She said the Gayes’ expert “cherry-picked 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 constellations bore any resemblance. But Big Dipper and Little Dipper they are not,” Nguyen wrote.

Circuit Judge Mary Murguia joined Smith’s opinion.

“Blurred Lines” was the world’s best-selling single in 2013.

Gaye’s song, which he recorded in his studio, topped Billboard’s Hot 100 chart in 1977. Interestingly, Marvin Gaye did not write or fluently read sheet music, and did not prepare the deposit copy.

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