Bloomberg BNA’s Patent Trademark & Copyright Law Daily™is the IP industry’s premier news service, offering objective, timely,and reliable daily news coverage and commentary from leading IP law...
Aug. 25 — The jury that found Robin Thicke and Pharrell Williams infringed a 1970s Marvin Gaye song to the tune of $7 million with their 2013 smash hit “Blurred Lines” never should have gotten the case, according to a brief filed April 23 by Williams and Thicke in the U.S. Court of Appeals for the Ninth Circuit ( Williams v. Gaye, 9th Cir., No. 15-56880, opening brief filed 8/23/16 ).
The “Blurred Lines” creators are appealing a jury verdict that they infringed Gaye's “Got to Give It Up” by copying the feel, sound and instrumentation of the R&B hit, rather than its melody or lyrics. They said they should have won the case on summary judgment, with the court resolving it before the jury got it.
“ ‘Blurred Lines' is not substantially similar to ‘Got To Give It Up' as a matter of law,” the brief said. “What happened was a cascade of legal errors warranting this Court's reversal or vacatur for new trial.”
Also, the trial court failed to remove from consideration elements of the songs that are not protectable under copyright law, and told the jury to consider things it shouldn't have, they said.
The filing is the first time the singer-songwriters are setting forth in detail their arguments in the appeal, which was originally filed back in December.
The brief said the trial court made numerous errors, including what experts were heard and how their testimony was weighed in addition to what evidence was allowed to be presented to the jury, which was improperly instructed. Damages were also erroneously calculated, the brief said.
As a result, “if left to stand, the ‘Blurred Lines' verdict would chill musical creativity and inhibit the process by which later artists draw inspiration from earlier artists to create new popular music,” the brief said.
Furthermore, Gaye's song was protected only to the extent that it was recorded in sheet music as deposited with the Copyright Office—“that is, a skeletal sketch of the song's main melody, lyrics, and chords,” it said. Other features of the record—like percussion parts and background noises—are not protected and shouldn't have been part of the comparison between the songs, the brief said.Source Material:
Williams v. Bridgeport Music Inc.
Declaratory Judgment Complaint: Aug. 15, 2013
Denial of Summary Judgment: Oct. 30, 2014
Jury Verdict: March 10, 2015
Soul and R&B singer Gaye, who launched his career in the late 1950s, recorded his most successful hits in the early 1970s. In 1977, he included one studio recording—“Got to Give It Up”—on the otherwise live album “Live at the London Palladium.” Released as a single, the song was a chart-topper.
In 2013, Williams, Thicke and Clifford Harris Jr.—a rapper who performs under the name “T.I.”—recorded “Blurred Lines” for Thicke's album of the same name.
“Blurred Lines” became a worldwide hit for Thicke, and its racy music videos and lyrics drew considerable public controversy. Gaye's heirs accused Williams and Thicke of infringing the 1977 record. Williams and Thicke brought a declaratory judgment action, asking the court to declare that “Blurred Lines” didn't infringe “Got to Give It Up.”
The case eventually went to trial, and a jury awarded Gaye's heirs $7 million (48 PTD, 3/12/15).
After the verdict, some R&B artists said they had started changing their crediting practices. Copyright lawyers told Bloomberg BNA that the case had called into question what was infringement and what wasn't (180 PTD, 9/17/15).
King, Holmes, Paterno & Soriano LLP and Quinn Emanuel Urquhart & Sullivan LLP represented Williams, Thicke and the others associated with making “Blurred Lines.” Arnold & Porter LLP, Wargo & French LLP and King & Ballow Attorneys represented Gaye's heirs.
To contact the reporter on this story: Anandashankar Mazumdar in Washington at email@example.com
To contact the editor responsible for this story: Mike Wilczek at firstname.lastname@example.org
Text available at http://src.bna.com/h2c.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)