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Appeals court upholds $5.3 million Blurred Lines ruling

By | Published on Thursday 22 March 2018

Blurred Lines

The Ninth Circuit appeals court in the US yesterday upheld the ruling in the high profile ‘Blurred Lines’ song-theft case, confirming that Pharrell Williams and Robin Thicke did indeed infringe Marvin Gaye’s ‘Got To Give It Up’ when they wrote their 2013 hit ‘Blurred Lines’.

It’s a ruling that lazy journalists everywhere will likely claim “blurs the line” between what constitutes inspiration and what counts as infringement in the songwriting process. And do you know what: I reckon it’s a ruling that “blurs the line” between what constitutes inspiration and what counts as infringement in the songwriting process. Maybe.

Although where the line definitely isn’t blurred is between the opinion of the two judges who carried yesterday’s judgement and the counter opinion of the one judge who dissented. The latter declared that her two colleagues’ ruling “strikes a devastating blow to future musicians”. They then dismissed that claim as “unfounded hyperbole”. I mean, don’t beat around the bush guys.

The ‘Blurred Lines’ litigation is one of the highest profile song-theft cases in recent times. Williams and Thicke were accused of infringement after the latter talked in a magazine interview about how Gaye’s music had inspired his big hit. The dynamic duo actually sued first to seek confirmation that their song didn’t infringe Gaye’s earlier work. The Gaye estate responded with their own litigation and ultimately prevailed in court, winning $5.3 million in damages and half of the ‘Blurred Lines’ copyright.

The case centred on a couple of copyright complexities.

First, a technicality. It was argued that American copyright law only protects a song as it was documented when logged with the US Copyright Office. In the era of ‘Got To Give It Up’ only the sheet music could be logged, so the song is technically only protected as represented in that form. Williams and Thicke argued that any similarities between ‘Blurred Lines’ and ‘Got To Give It Up’ were in the recorded versions, not the written versions.

The judge hearing the case agreed with this narrow definition of what is actually protected by the song copyright, thus deciding that the recorded versions of the two songs should not be played in court. Though lawyers for Williams and Thicke argued that the judge didn’t enforce that rule enough once reps for the Gaye estate were presenting their evidence.

Secondly, Williams and Thicke argued that they didn’t directly infringe Gaye’s work, rather the two songs shared a “vibe”. Copyright doesn’t protect a “vibe”, they argued, and suggested that it should would set a dangerous precedent that could hinder the creative process for songwriters everywhere.

The majority opinion on appeal yesterday refused to overturn the jury decision in the original case. Arguments from the Williams and Thicke camp that jury instructions, expert testimony and evidence presented by the Gaye side in the original trial had been improper were rejected. The two judges siding with the Gaye camp added that their conclusion was the result of the “settled procedural principles and the limited nature of our appellate review”.

However, dissenting judge Jacqueline Nguyen was scathing of her colleagues’ judgement, mainly because of the precedent it arguably sets in American copyright law.

After picking holes in the testimony of the Gayes’ chosen musicologist at the original trial, who, she said, cherry-picked similar snippets rather than considering the two songs as a whole, Nguyen then wrote: “The majority allows the Gayes to accomplish what no one has before: copyright a musical style”.

She goes on: “‘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”.

Howver, Nguyen’s two colleagues were having none of it. First they argued that Nguyen was over-stepping her remit as an appeals judge. “The dissent’s position violates every controlling procedural rule involved in this case”, they wrote. “The dissent improperly tries, after a full jury trial has concluded, to act as judge, jury and executioner”.

And as for Nguyen’s concerns about precedent, well that’s all “hyperbole” remember. Though they do slip in a “respectfully” before declaring “these conjectures are unfounded hyperbole”. So that’s alright then.

What specifically is hyperbolic in Nguyen’s dissenting judgement? Well, the prophesies that “our decision will shake the foundations of copyright law, imperil the music industry, and stifle creativity”, and the suggestion 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”.

“Our decision does not grant license to copyright a musical style or ‘groove'”, they add. “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”.

Again citing the limited role of the appellate review in this case, they concluded: “Our decision hinges on settled procedural principles and the limited nature of our appellate review, dictated by the particular posture of this case and controlling copyright law. 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 maximise their odds of success”.

The majority ruling did overturn one element of the ‘Blurred Lines’ case though, a decision made by the judge rather than the jury in the original trial. This related to the liabilities of TI, the guest rapper on ‘Blurred Lines’, and Universal’s Interscope label, which released the track but didn’t publish the song. The judge extended liabilities to both after the jury ruled in the Gaye estate’s favour, but the appeals court have now formally let TI and Interscope off the hook.

The appeals court states: “Harris and the Interscope parties contend that the district court erred in overturning the jury’s general verdicts finding in their favour. We agree. First, the Gayes waived any challenge to the consistency of the jury’s general verdicts. Second, even had the Gayes preserved their challenge, neither Federal Rule of Civil Procedure 50(b) nor our decisions in Westinghouse and El-Hakem v. BJY Inc, conferred authority on the district court to upset the jury’s verdicts in this case. Third, as to Harris specifically, the district court erred for the additional reason that no evidence showed Harris was vicariously liable”.

Many in the American music and legal communities have been watching this case closely, wondering whether the now upheld ruling does indeed set a bad precedent that could hinder future songwriting. One lawyer who has been following the proceedings, J Michael Keyes at law firm Dorsey & Whitney, told CMU last night: “Upholding the jury’s verdict – and the ultimate damage award – could very well mean we see a new wave of additional music infringement lawsuits and claims”.

He went on: “The Ninth Circuit majority decision was quite explicit in opining that musical works receive broad protection and that ‘there is no one magical combination of factors that will automatically substantiate a musical infringement suit’. That standard is rather noteworthy and leaves quite a bit of play in the joints for future litigants to cobble together a music infringement claim. In fact, as the dissenting opinion points out, the majority decision seems to give copyright protection to a ‘musical style’ as the two works ‘differ in melody, harmony and rhythm'”.

Keyes also noted that the appeals court implicitly (but not explicitly) upheld the lower court’s decision on limiting copyright protection to only the work as logged with the Copyright Office (not that this limitation helped Williams and Thicke, as their lawyers had hoped it would). That limitation also came up in another recent high profile song theft case, that which accused Led Zeppelin of ripping off an earlier work for their song ‘Stairway To Heaven’. The plaintiff in that case specifically criticised this limitation when appealing Led Zep’s court win.

Keyes continues: “One important but rather technical issue that the court did not decide – and that is directly relevant in the Led Zeppelin ‘Stairway To Heaven’ appeal pending before the Ninth Circuit – was whether the ‘scope’ of copyright protection is dictated by the notes on the printed page or whether the sound recording can be considered as defining the scope of protection”.

He concludes: “The trial court ruled that the scope of Gaye’s copyright protection was limited to the sheet music because that is what was submitted to the Copyright Office and what was ultimately registered. The Ninth Circuit assumed, without deciding the issue, that the trial court made the correct decision. We will need to wait and see how the court deals with this same theme in the ‘Stairway To Heaven’ case”.