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DON'T INTENSIFY THE "BLUR": WHY THE "BLURRED LINES" VERDICT AND RULING WILL BE AND SHOULD BE REVERSED ON APPEAL

Updated: May 28

By Manotti L. Jenkins


Let’s not get it twisted here. As an avid music consumer, especially of old school R&B, I absolutely love “Got to Give It Up” and Marvin Gaye may be my favorite solo artist of all times (not to mention that one of my daughters fell in love with the dude posthumously back when she was about age 6, and still feels the same in her late 20’s). But as an IP lawyer and copyright infringement litigator, I consider the potential “blur” created by the March 10, 2015 verdict of a Los Angeles federal jury particularly troubling and legally unsupportable. By that verdict, the jury found Robin Thicke, Pharrell Williams, and Clifford Harris, Jr. (“T.I.”) liable for copyright infringement to the tune of nearly $7.4 million owed to the Gaye family, having concluded that the 2013 “Blurred Lines” mega-hit infringed Gaye’s 1977 mega-hit (on July 13, 2015, the trial judge decreased the award to $5.3 million, but also rejected a motion for a new trial filed by the attorneys for Thicke, Pharrell and T.I.).



In short, this case is a textbook example of why “the law” must protect all of us from the possibility of jury verdicts improperly influenced by the “unlikeability” of important witnesses, interpretations of irrelevant testimony, and misapplication of admittedly complex legal principles. In other words, this case should have never gone to the jury; the judge should have dismissed the case on pretrial motions. By not doing so, and exacerbating the problem by committing a major evidentiary error during the trial, the judge allowed the line to be blurred between “inspiration” and “infringement.” But I predict that the Ninth Circuit Court of Appeals will get it right and return the music copyright world back to its proper place.


Before we consider the adverse consequences that likely resulted from a reportedly extremely arrogant and tainted Robin Thicke during the trial, we must first discuss the legal standards that apply to this copyright infringement case. But even before we go there, just so I am not accused of advocating the use of “legal technicalities” to overturn the jury verdict, I should reiterate the position I took when I first heard about the allegations of copyright infringement in this case – as much as I love Marvin, I know that he DID NOT and COULD NOT have a monopoly on any song that uses a cowbell, an electric piano, a strong bass line, falsetto male singing, and background party noise highlighted by shouting male voices. The vocal melodies and lyrics of the two songs are, in my judgment, very different. Now that that’s out of the way. . . .


Under the 1976 Copyright Act, music can be protected by two forms of copyright: the first is for the MUSICAL COMPOSITION, which covers the lyrics and the written music, and the second is for the SOUND RECORDING, which covers the precise fixation of a series of musical as well as spoken sounds, in addition to other sounds in the musical work, which is often referred to as the master recording. Musical works created prior to 1978 such as “Got to Give It Up,” however, were governed by the prior 1909 Copyright Act, which did not extend copyright protection to the SOUND RECORDING, but only to the MUSICAL COMPOSITION.


In the “Blurred Lines” case, the evidence was presented that Marvin Gaye recorded “Got to Give It Up” in 1976 and registered the musical composition with the U.S. Copyright Office in 1977, having submitted to the Copyright Office sheet music of the lyrics and some of the melodic, harmonic, and rhythmic features. After Gaye died on April 1, 1984, his family became the copyright owners of the musical composition. According to the evidence presented during the trial, neither Gaye nor his family ever registered a copyright on the sound recording of “Got to Give It Up” once the 1976 Copyright Act became effective. Therefore, the only facet of “Got to Give It Up” protected by registered copyright is the creativity expressed in the sheet music.


The attorneys for Thicke, Pharrell and T.I. filed motions for summary judgment (i.e., requesting that the judge rule in their clients’ favor as a matter of law) after the evidence had been gathered during the pretrial discovery phase of the litigation. Under copyright law, for a plaintiff (which was the Gaye family on the infringement claim) to prove copyright infringement, she must prove that she (1) owns a valid copyright in the work she is claiming was infringed, and (2) the defendant copied protected elements of that work. When there is no proof of direct copying, the law permits the plaintiff to show copying circumstantially, i.e., that the defendant had access to the copyrighted work and that the two works under consideration are substantially similar.


The issue of “substantial similarity” is determined through a two-part test: (1) an objective extrinsic test and (2) a subjective intrinsic test. The first test should be used by the judge at the summary judgment stage, and requires the judge to analytically dissect the work into its elements and separate out the unprotected elements, leaving only the protected elements available for a comparison of substantial similarity. The judge in this case ruled that only the lead sheets defined the scope of the Gaye family’s copyrighted compositions and not any of the sound recordings. He went on to hold that “Blurred Lines” contained material that was substantially similar to what he considered to be the protected copyrighted material in the lead sheets of “Got to Give It Up,” under the objective test, which sent the case to the jury to apply the subjective test. The judge found such substantial similarity despite the testimony of the testifying expert of Thicke, Pharrell and T.I. that the similarities the judge found were “scenes a faire” (i.e., note sequences that necessarily follow from a common theme, that are not protectable) and “commonplace and generic building blocks of musical compositions.”


After the judge let the case go to the jury, he committed the greatest evidentiary error that will cause the verdict and the judge’s legal conclusions to be reversed: the judge allowed evidence of the sound recording of “Got to Give It Up” to be presented to the jury as if the copyright at issue protected the sound recording, as opposed to the musical composition only. As discussed above, this was not the case and for the judge to permit evidence of the sound recording before the jury was unfairly prejudicial and reversible error. The oddity is that the judge, during his threshold phase of the analysis, properly limited the general scope of what was covered by the “Got to Give It Up” copyright to the creativity fixed within the sheet music. Where he veered off course was to permit evidence of the sound recording of “Got to Give It Up” before the jury as if it is protected by copyright and thus the subject of the substantial similarity test, which it is not.


Although that was the major legal error, it was accompanied by all sorts of other tidbits of testimony that probably collectively spelled the death knell for Thicke, Pharrell and T.I. at trial. First and foremost, reportedly Thicke presented an excessively arrogant demeanor during his testimony, including admitting that he was high on drugs and alcohol while recording the “Blurred Lines” track. He also admitted that he had lied by claiming a songwriting credit for the song when in fact Pharrell wrote and produced the song. According to the trial transcript, Thicke testified: “The biggest hit of my career was written by somebody else and I was jealous and wanted credit. . . . I felt it was a little white lie that didn’t hurt his career but boosted mine.”


Also problematic and likely confusing to the jury was Pharrell’s testimony that he was “inspired” by the Marvin Gaye song when writing his song, as well as the evidence of Thicke’s interviews before the trial, during which he consistently said that “Got to Give It Up” was one of his “favorite songs of all times,” and that he “wanted to make something with that groove.” But neither a same or similar “groove” as another song nor “inspiration” from another song equates to copyright infringement. In fact, the music industry is inundated with songs inspired by prior songs and that adopt the same or similar grooves as prior songs. It is, indeed, the nature of the rhythmic and creative beast that pop culture is built on the foundation of what has come before.


The best quote I have heard that captures the problem with the “Blurred Lines” verdict, which eroded the distinct line that the law has created between inspiration and copying, was offered by another IP legal commentator: “The jury blurred the lines between protectable elements of the musical composition and what is unprotectable, which is a musical style or genre, the groove exemplified by Marvin Gaye.”


I have confidence that the Ninth Circuit will not intensify that blur, but will instead eliminate it, by reversing the jury’s verdict and overturning the trial judge’s rulings. At the least, I expect that the Ninth Circuit will require a new trial, absent the inadmissible evidence, but I also anticipate that the dispute will be settled before a new trial commences.

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