‘Blurred Lines’ Appeal Hinges on Marvin Gaye Record as Evidence

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By Anandashankar Mazumdar

Survival of a $7 million copyright infringement award won by Marvin Gaye’s heirs against the creators of the 2013 number one hit “Blurred Lines” will depend on whether it was okay for jurors to hear evidence about the 1977 recording of “Got to Give It Up.”

The U.S. Court of Appeals for the Ninth Circuit heard arguments Oct. 6 by lawyers for Pharrell Williams and Robin Thicke, who recorded “Blurred Lines,” and the Gaye family over whether the infringement verdict and the damages award should stand ( Williams v. Gaye, 9th Cir., No. 15-56880, argued 10/6/17 ). The lawyers’ arguments centered on whether Gaye’s recording could be used as evidence in the case. Gaye didn’t use musical notation and didn’t write out the score to “Got to Give It Up.” Someone else listened to the recording and created what is called a lead sheet to deposit with the Copyright Office.This case is being closely watched by musicians, especially rhythm and blues artists, because they fear that if the verdict stands, they will be much more constrained in creating music in certain styles, moods, or genres or with certain instrumentation, even if they don’t copy melodies or lyrics.

The verdict “was significant because it seems to imply that copying the ‘feel’ of a composition is enough to constitute copyright infringement, and most of the criticism of the district court decision has been about creating that precedent,” Robert E. Allen of McKool Smith Hennigan, Los Angeles, told Bloomberg BNA. Getting the appeals court to order a new trial might be the best chance of dealing with that danger, he said.

Hundreds of musicians, including Jennifer Hudson and members of Linkin Park, the Black Crowes, and Tears for Fears, have signed on to a friend-of-the-court brief, saying that the “verdict would chill musical creativity.”

Sheet Music or Recording

Because “Got to Give It Up” came out before 1978, Gaye’s copyright is governed by older law, the Copyright Act of 1909, and that means that the actual work being protected is defined by the lead sheet that was deposited at the Copyright Office when the song was registered, Williams and Thicke’s lawyer argued.

The U.S. District Court for the Central District of California erred by failing to explicitly instruct the jury to compare “Blurred Lines” only to the sheet music deposited with the Copyright Office when “Got to Give It Up” was registered, Kathleen M. Sullivan of Quinn Emanuel Urquhart & Sullivan LLP, New York, said to the three circuit court judges hearing the appeal. She criticized the district court for allowing expert witness to testify before the jury about the Gaye recording.

“The deposit copy should have been the focus of the case,” Sullivan said. This case was “not about the sound recording, not about the groove and feel of ‘Got to Give It Up’.”

“Is it your position that, note-for-note, the Gaye family can have no protection beyond the actual notes that are on the lead copy?” Judge Milan D. Smith Jr. asked.

Yes, Sullivan said, just the melody, lyrics, and instrumentation noted in the deposit copy. “If it’s not in there, you can’t make it up.”

Gaye Didn’t Compose on Paper

But the Gaye family’s lawyer, Lisa Schiavo Blatt of Arnold & Porter Kaye Scholer LLP, Washington, rejected what she called the “flawed premise” that the jury could only consider the sheet music.

Even though it was the composition right in “Got to Give It Up” that was at issue in the case, Blatt said, the composition was best represented by Gaye’s recording, rather than a lead sheet that was later prepared by a transcriber, not by Gaye himself.

What was presented to the jury was stripped of unprotectable elements, such as the percussion, the bass line, and the sounds of people partying, she said.

Blatt also urged the court not to second-guess the jury’s conclusion. “This court has never overturned a jury verdict in a music copyright case, and this case should not be the first,” she said.

Judges Mary H. Murguia and Jacquiline H. Nguyen also served on the appeals panel.

King, Holmes, Paterno & Soriano LLP, and Quinn Emanuel Urquhart & Sullivan LLP represented Pharrell Williams and Robin Thicke. Arnold & Porter Kaye Scholer LLP, Wargo French LLP, and King & Ballow represented Marvin Gaye’s heirs.

To contact the reporter on this story: Anandashankar Mazumdar in Washington at AMazumdar@bna.com

To contact the editor responsible for this story: Mike Wilczek at mwilczek@bna.com

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