March 21, 2018, USCA, Ninth Circuit

Split Ninth Circuit panel upholds jury verdict finding 2013 hit song “Blurred Lines” infringed the musical composition copyright of Marvin Gaye’s 1970s song “Got To Give It Up” and affirms district court’s denial of Gaye’s heirs’ application for attorneys’ fees, but reinstates the jury verdict clearing a rap contributor to the song and an owner of the master recording.

After hearing “Blurred Lines,” the 2013 best-selling single written and recorded by Pharrell Williams and Robin Thicke, family members of Marvin Gaye who had inherited the copyrights in his musical compositions believed that the song infringed Gaye’s 1976 hit “Got To Give It Up.” The Gayes made an infringement demand, but, after negotiations failed, Williams and Thicke filed suit in California federal court seeking a declaratory judgment of non-infringement. The Gayes counterclaimed alleging copyright infringement and added Clifford Harris, Jr., commonly known as the rapper T.I., as a third-party defendant because he had separately written and recorded a rap verse that was added to the “Blurred Lines” track seven months after its initial recording, as well as Interscope Recordings, which co-owned the “Blurred Lines” sound recording. The district court denied Williams’s and Thicke’s motions for summary judgment, and the case proceeded to trial. The jury found that Williams and Thicke had infringed the Gayes’ copyright in “Got To Give It Up,” but that Harris and Interscope were not liable for infringement. The jury awarded the Gayes $7.3 million in actual damages and infringer’s profits from both Williams and Thicke.

Post-trial, the district court denied Williams’s and Thicke’s motions for judgment as a matter of law and for a new trial, but remitted the award of actual damages and the award of Williams’s profits. The district court also overturned the jury’s verdict in favor of Harris and Interscope as inconsistent with the finding of liability, apportioned costs between the parties, and denied the Gayes’ motion for attorneys’ fees. Ultimately, the district court awarded the Gayes $3,188,527.50 in actual damages, $1,768,191.88 in infringer’s profits against Thicke, $357,630.96 in infringer’s profits against Williams, and a continuing royalty of 50% of future songwriter and publishing revenues received by Williams, Thicke, and Harris from “Blurred Lines.” Williams, Thicke, and Harris (the Thicke Parties) appealed the denial of their motions for summary judgment and a new trial, the damages award, and the overturning of the verdict in favor of Harris. The Gayes appealed the order on attorneys’ fees and costs, and also lodged a “protective” appeal, arguing that, in the event the jury verdict is overturned and a new trial takes place, the jury should be permitted to listen to the commercially-released recording of “Got To Give It Up,” and not just a rendition of the sheet music that had been deposited with the copyright office.

On appeal, Williams, Thicke, and Harris challenged the district court’s pre-trial denial of their motion for summary judgment, arguing that the lower court had erred in its application of the extrinsic test for substantial similarity. The Ninth Circuit, however, rejected this appeal on procedural grounds, citing the U.S. Supreme Court’s 2011 decision in Ortiz v. Jordan for the rule that a party may not appeal an order denying summary judgment after a full trial on the merits has been held. The Thicke Parties argued that the Ninth Circuit had previously created an exception to this general rule where the district court made an error of pure law. Putting aside the question of whether such an exception could persist after Ortiz, the Ninth Circuit reasoned that no error of pure law was present, since the district court’s application of the extrinsic test for substantial similarity was an intensely fact-bound inquiry.

In challenging the district court’s denial of their motion for a new trial, the Thicke Parties argued that certain jury instructions were erroneous, that the district court had abused its discretion in admitting portions of the Gayes’ expert testimony, and that the verdict against Thicke and Williams was against the clear weight of the evidence. The Ninth Circuit found no defect in the jury instructions, holding that the instructions at issue accurately stated the law and did not constitute an abuse of discretion by the district court. The appellate court likewise found no abuse of discretion in admitting the challenged portions of the Gayes’ expert testimony. While the Thicke Parties argued that the experts had based their testimony on unprotectable elements of the Marvin Gaye song, the Ninth Circuit reasoned that the dispute boiled down to a question of which side’s expert testimony to believe on the issue of which elements are protectable. According to the Ninth Circuit, the question of which expert’s interpretation to credit was properly left to the jury to resolve, and there was no evidentiary error requiring a new trial. As to the weight of the evidence, the appellate court noted the extremely deferential standard of review, which calls for reversal only when there is “an absolute absence of evidence” to support the jury’s verdict, as well as the Ninth Circuit’s historical reluctance to reverse jury verdicts in music cases, given the difficulty of proving access and substantial similarity. Given the extensive and detailed expert testimony put forth by the Gayes regarding the similarity between the two songs, the court reasoned it could find no “absolute absence of evidence” requiring reversal and a new trial.

The Ninth Circuit further upheld the district court’s damages award. The appellate court again noted the deferential standard of review, under which an award of hypothetical-license damages should be upheld unless it was based on “undue speculation.” The court held that the license rate of 50% was not unduly speculative, as it was based on the testimony of an expert for the Gayes who had over twenty years of experience in the field of negotiating and assigning valuations for the use of portions of older musical compositions. Having credited the methodology and opinion of the Gayes’ expert, which the appellate court noted was “tethered to her deep industry expertise,” the court easily and quickly held that the damages award was proper.

The Ninth Circuit did find error with regard to one decision of the district court, however, reversing the lower court’s overturning of the jury verdict in favor of Harris and Interscope. First, on procedural grounds, the court held that the Gayes had waived challenge to any perceived inconsistencies between the jury’s verdicts by failing to object to the jury’s verdicts before the jury was discharged, or even during a colloquy with the district court after the jury was discharged. The Ninth Circuit held that the Gayes had also waived their objection by failing to move for judgment as a matter of law before the case was submitted to the jury, an absolute prerequisite for considering a renewed motion for judgment as a matter of law after trial. The court found none of the “very limited circumstances” present that would allow the district court to reconcile the verdicts without intruding on the jury’s fact-finding role.

Finally, the Ninth Circuit also rejected the Gayes’ challenge to the district court’s order denying their motion for attorneys’ fees. The court held that the district court had properly examined and analyzed the various discretionary factors for an award of attorneys’ fees outlined by the Supreme Court’s 2016 decision in Kirtsaeng v. John Wiley & Sons, Inc., and thus there was no reason to remand on that issue. The court also upheld the lower court’s apportionment of costs between the parties, noting the appropriateness of awarding costs to each party with respect to the claims on which they each prevailed and rejecting the notion that there can only be one prevailing party in a given case for purposes of awarding costs.

In a scathing dissent, U.S. Circuit Judge Jacqueline Nguyen argued that the majority had allowed the Gayes “to accomplish what no one has before: copyright a musical style.” According to the dissent, the two songs were not objectively similar, and the similarities presented by the Gayes involved unprotectable elements, so the lack of substantial similarity meant that judgment should have been given as a matter of law. The dissent contended that, by refusing to engage in a de novo comparison of the works, the majority had established “a dangerous precedent that strikes a devastating blow to future musicians and composers everywhere.” In response, the majority argued that the dissent was violating the controlling procedural rules dictated by the posture of the case. In defending its decision, the majority also stated that “[f]ar 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 maximize their odds of success.”