On March 21st, as reported by The Hollywood Reporter, The US Court of Appeals for the Ninth Circuit upheld a former verdict that Robin Thicke and Pharrell Williams’ 2013 pop hit “Blurred Lines” did infringe on Marvin Gaye’s “Got To Give It Up”. This case has been particularly controversial since it first hit the courts in 2015, making it one of the most followed copyright infringement cases in history. The appeals court rule 2-1 in favor of the Gaye Estate, with the one dissenting judge, U.S. Circuit Judge Jacqueline Nguyen, declaring that the decision “strikes a devastating blow to future musicians and composers everywhere”, noting that the Gaye Estate’s win effectively “accomplish[ed] what no one has before: copyright[ing] a musical style.”
However, with this appeal, the Ninth Circuit ruled that Thicke and Williams are liable for $5.3 million dollars in damages to the Gaye Estate. More specifically, the two musicians behind “Blurred Lines” are now responsible for covering $3,188,528 in damages, plus portions of the profits—$1,768,192 for Thicke and $357,631 for Williams. Furthermore, the court ruled that the Gaye Estate should receive 50% of future songwriter and publishing revenues earned by “Blurred Lines” and absolved Clifford “TI” Harris and Interscope Records of any part in the infringement.
U.S. Circuit Judge Milan D. Smith noted that the panel “decided this case on narrow grounds” in his ruling, though in the end, the court rejected Thicke and Williams’ argument that Gaye’s music should only receive “thin” protection. However, Nguyen’s dissenting opinion was scathing, to say the least. She wrote that “‘Blurred Lines’ and ‘Got to Give It Up’ are not objectively similar. They 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.” She continued, “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.”
While Nguyen’s stance on this was strong, Smith addressed these concepts in his own brief. He wrote:
[T]he dissent prophesies that our decision will shake the foundations of copyright law, imperil the music industry, and stifle creativity. … It even suggests that the Gayes’ victory will come back to haunt them, as the Gayes’ musical compositions may now be found to infringe any number of famous songs preceding them. Respectfully, these conjectures are unfounded hyperbole. Our decision does not grant license to copyright a musical style or ‘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. … 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 maximize their odds of success.
Nguyen also questioned the process behind the ruling, calling out what she found to be “the majority’s uncritical deference to music experts.” In the 2015 trial, the trial judge did not allow the jury to actually listen to both songs, instead using each song’s sheet music submitted to the U.S. Copyright Office as the basis for the lawsuit—”Got To Give It Up” was protected by the 1909 Copyright Act, which didn’t cover sound recordings and was the standing copyright law until the mid-1970s. Smith upheld this ruling of only allowing jurors to see the sheet music rather than hear the two songs for comparison, leading Nguyen to add in her dissent,
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.
[H/T Hollywood Reporter]