There are far fewer blurred lines now for Robin Thicke and Pharrell Williams after the U.S. Circuit Court of Appeals for the Ninth District told the talented duo they’ve got to give it up and concede that they infringed on copyrights held by heirs to the soul legend Marvin Gaye.
After more than 4.5 years of litigation, the divided appellate panel upheld the lower court ruling that Thicke and Williams were in the wrong with their 2013 international chart-topper Blurred Lines and how it dealt with material from Gaye’s song Got to Give It Up.
In 2015, jurors found that Williams, Thicke, and More Water from Nazareth Publishing infringed rights held by Frankie Christina Gaye, Nona Marvisa Gaye, and Marvin Gaye III, and awarded the Gaye heirs $5.3 million in damages and a running royalty of 50 percent of future revenues from Blurred Lines.
Jurors also decided that Clifford Harris Jr. (Rapper TI), who contributed a verse to the track, and the Interscope Parties were not liable for infringement.
In 2016, the defendants appealed. More than 200 songwriters, composers, musicians, and producers joined their argument in an amicus brief telling the court how fundamental and key its for musicians to be allowed to refer and “borrow” from one another’s works. These appellant legal “friends” included members of Earth, Wind & Fire, John Oates, Jennifer Hudson, and Linkin Park.
On appeal, the parties led by Thicke and Williams argued that Gaye’s copyright enjoys thin protection. The majority opinion (read here) by U.S. Circuit Judge Milan D. Smith Jr. rejected that argument, finding broad protection, instead. Musical compositions “are comprised of a large array of elements, some combination of which is protectable by copyright,” wrote Smith.
Limits in the decision
The appellate judges also accepted the lower court’s ruling, under the Copyright Act of 1909, to limit the Gaye copyright to tune’s deposit copy alone — and not extending to sound recordings. The appellate judges affirmed that the defendants could not after a full trial overturn the early decision by the judge below to deny summary judgment. The federal judge also was upheld in his ruling to deny a new trial.
As for the key decisions as to how the lower court ruled on rights and the Gaye music itself, “There was not an absolute absence of evidence of extrinsic and intrinsic similarity between the two songs,” Smith stated. He said was true, even though testimony expressed similarity in many areas, 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.”
A large portion of the appellate ruling takes aim at the actual damages awarded to the Gaye heirs, notably 50 percent of publishing revenues for Blurred Lines. The court found that the $3.2 million award was not based on undue speculation but rather on an expert’s reliable assessment of the two songs. Further, the court upheld the awarded profits of $2.1 million.
The appellate judges reversed the lower court, in part, finding the district court erred in overturning the jury’s general verdict in favor of Harris and the Interscope Parties. The appellate judges said they did so because the Gaye heirs waived any challenge to the consistency of the jury’s general verdicts by not objecting to it prior to dismissal of the panel’s members. The appellate judges found no duty to reconcile the verdicts, and ruled the district court erred in finding Harris secondarily liable for vicarious infringement.
A finding too far?
Critics closely watched this case, warning that a ruling unfavorable to Thicke and Williams would expand copyright to cover a general musical style. That argument held some sway with Jacqueline Nguyen, one of the appellate judges who offered a sharp dissent. “The majority allows the Gayes to accomplish what no one has before: copyright a musical style,” Nguyen declared. “The majority establishes a dangerous precedent that strikes a devastating blow to future musicians and composers everywhere.”
The appellate majority, eventually addressing the concerns of many in the musical community, fired back that the dissent’s “conjectures are unfounded hyperbole. Our decision does not grant license to copyright a musical style of ‘groove’… 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.”
According to Law360 the Gaye heirs called the ruling “a victory for the rights of all musicians.”
Legal experts were divided by the appellate decision and the future force of the Blurred Lines case on music copyrights, with some finding it a major loss and others saying it may not have the consequence that many analysts now give it.