The Ninth Circuit Court of Appeals has now upheld an earlier copyright infringement ruling against ‘Blurred Lines’ creators Robin Thicke and Pharrell Williams.
One of the most controversial music copyright verdicts in recent memory has been upheld. Just this (Wednesday) morning, a split panel of judges on the Ninth Circuit Court of Appeals ruled that ‘Blurred Lines’ infringes upon the copyright of Marvin Gaye’s ‘Got to Give It Up.’
Expressing the majority opinion, Circuit Judge Milan D. Smith Jr. rejected the argument that Gaye’s copyright was only entitled to ‘thin protection’: “Musical compositions are not confined to a narrow range of expression,” Smith declared.
The ruling means that the main writers of ‘Blurred Lines,’ notably Pharrell Williams and Robin Thicke, will now be saddled with million in damages. But more importantly, the decision radically stretches the bounds for what constitutes copyright infringement under U.S. Copyright law.
The majority opinion is here.
A ‘devastating blow to future musicians’…
The three-panel Ninth Circuit Court of Appeals ruled 2-1 in favor of Gaye and his heirs, upholding the earlier, 2015 verdict. The close decision reflects the extremely controversial nature of the lawsuit: instead of Pharrell and Thicke being accused of note-for-note plagiarism, the pair faced infringement charges for using other elements of Marvin Gaye’s style. Most of those elements are not strictly protected under the letter or U.S. Copyright Law.
Despite radical differences in both key signature (one song is major, the other minor, for example), the similar ‘feel’ of the two pieces is what swayed the decision against the ‘Blurred Lines’ authors.
That decision seriously redraws the map on what will be considered infringement in future cases. And, it could seriously affect the future of the music industry, especially those businesses that revolve around copyrighted IP.
Most harrowingly, the decision could motivate a flurry of copyright infringement lawsuits — especially cases previously regarded as long shots.
Artists will also face a strikingly different legal minefield ahead. “This strikes a devastating blow to future musicians,” the dissenting judge warned.
Accordingly, both Robin Thicke and Pharrell Williams will face $5.3 million in damages — to start.
The duo will also be forced to relinquish 50% of future royalties, and face restrictions of future distribution and exploitation of the track. This is one smash hit the pair will forever regret.
Pharrell Williams has remained extremely vocal about the frivolity of the suit. In his defense, Williams pointed heatedly to marked differences between the actual notes of the two songs, while warning that similarities in style should not constitute infringement.
More technically, the defendants argued that jury instructions, expert testimony and a range of evidence were improperly handled during the 2015 trial.
Robin Thicke maintained a more blasé, pop star affect during the 2015 testimony, a decision that probably contributed to the current defeat. Thicke’s career has slumped substantially in recent years, and this certainly doesn’t help.
The strangely unanswered details — that may haunt the music industry for decades.
Incidentally, the earlier trial court judge ruled that ‘Blurred Lines’ only infringed upon the sheet music of ‘Got to Give It Up’. The reasoning is that Gaye’s track was released prior to Copyright Act updates in the early 1970s, which introduced federal protection for sound recordings.
The Appellate Court chose not to alter that decision, leaving far more questions than answers. After all, if there are substantial differences in the actual music itself — with the sheet music as the comparison point — does this really constitute copyright infringement?
Sadly, the Ninth Circuit also upheld a jury instruction that specifically disallowed the jurists to hear the actual sound recordings. That meant that critical elements like cowbells and background celebratory noises were not really considered, outside of contested ‘expert testimony’ from someone selected by the Gaye camp.
Dissenting judge Jacqueline Nguyen blasted the ‘dangerous decision’.
“The majority allows the Gayes to accomplish what no one has before: copyright a musical style,” Nguyen opined. “‘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.”
Nguyen also seriously questioned the apparent bias of ‘expert’ Judith Finell. “While juries are entitled to rely on properly supported expert opinion in determining substantial similarity, experts must be able to articulate facts upon which their conclusions — and thus the jury’s findings — logically rely.”
“Here, the Gayes’ expert, musicologist Judith Finell, 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 two constellations bore any resemblance. But Big and Little Dipper they are not. The only similarity between these ‘constellations’ is that they’re both compositions of stars.”
The case of Pharrell Williams, et al v. Frankie Gaye, et al was designated as Case Number 15-56880 in the 9th Circuit Court of Appeals.