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Looks like the 9th circuit judge upheld the district court’s decision in finding copyright infringement in the lawsuit between the estate of Marvin Gaye and defendant’s Robin Thicke, Pharrell Williams, and T.I. If you’ve been following my blog posts, I discussed the lawsuit and the 2015 verdict (“Copyright Act of 1976: Is it Now Just a Bunch of Blurred Lines?) that is certain to have a chilling effect on music creators and copyright law in general. In case you’ve been living under a rock for the past few years, here’s a brief recitation of the facts:

I’m sure you all know the song “Blurred Lines” by Robin Thicke featuring Pharrell Williams and T.I (“Thicke and them”). Some of you might even know the dance. It took me a second to get it, but I kill it now ;-) At any rate, Thicke and them were sued by Marvin Gaye’s estate (the “Estate”) for copyright infringement of the Marvin Gaye hit “Got to Give It Up”. The Estate contacted Robin Thicke about copying Marvin Gaye’s hit song “Got to Give It Up” in Thicke’s song “Blurred Lines”. The Gaye’s contacted Thicke demanding monetary compensation and threatening litigation if none was provided. The parties couldn’t agree on a settlement, so in August 2013, Thicke, along with Pharrell and Clifford “TI” Harris (co-writers of the song), went on the preemptive and filed a Declaratory Judgment alleging that Blurred Lines did not copy any of Gaye’s song. Thicke admitted to copying elements that were reminiscent of a particular era in order to evoke a certain sound and feel. The 9th circuit district court judge found liability for Thicke and them and ordered them to pay $7.4 million in damages to Marvin Gaye’s estate. The Estate alleged that Thicke and them copied protectable elements of Marvin Gaye’s song, so much so, that anybody listening to the song can tell the similarities. The case went to trial and a jury found Thicke and them guilty and awarded almost $7.4 million in damages (including statutory damages), making that the highest amount awarded for a copyright infringement claim in history. The amount was then reduced the judge to $5.3 million, which represented half of the money made by Thicke and them from Blurred Lines.

Thicke and them were undoubtedly upset (to say the least) about this decision, especially because they are respected musicians and creators themselves. They contend that they would never steal from other artists because they would never want it done to them. Thicke explains that he was inspired by Marvin Gaye, along with plenty of artists before him, and that with the limitations on chords in popular music, there’s only so much one can do to be completely original. T.I holds firm that he did nothing wrong. T.I. who proclaims he has nothing but utmost respect for Marvin Gaye and his music and states “I know that I’m a writer, a creator, I don’t steal from anybody creatively when I make my music. I know that, and I think anybody with common sense will be able to see it whenever they listen to it.” Pharrell also contends they did not commit any acts of infringement. So, needless to say Thicke and them appealed the decision. And surprisingly enough, the 9th Circuit Court of Appeals Judge Milan D. Smith, Jr. upheld the decision in favor of the Estate and found the following:

  1. Lower court did not commit any reversible error in denying Thicke and them’s motion for a new trial;

  2. District court correctly instructed the jury that there was no knowledge or wrongdoing requirement in copyright infringement, simply access and substantial similarity;

  3. There was no error in instructing the jury to consider the elements of the song that are not protected by copyright infringement in reaching their decision;

  4. The court did not abuse its discretion in admitting the Estate’s expert testimony; and,

  5. The verdict was not against the clear weight of the evidence because there was evidence of similarity between the two songs at issue.

In deciding that, Judge Smith rejected Thicke and them’s argument that the Estate was only entitled to diminished copyright protection, stating that the Copyright Act places no such limitations on musical compositions. “Got to Give It Up” was created under the 1909 Copyright Act, so the trial judge limited protection solely to the sheet music and not the sound recording, and Judge Smith did not speak to this issue in her decision. T.I. was actually exonerated from vicarious liability, so the appeal resulted in a win for him.

I won’t get too technical or lengthy in my discussion, but I do want you to understand this whole appeal process. People often think if they lost at trial, they can just appeal and get a second bite at winning, but this couldn’t be further from the truth. Appellate courts aren’t a second trial, in fact that’s what prompted this appeal, because Thicke and them’s motion for new trial was denied after they losing at trial. The appellate court reviews the lower court’s procedural and technical errors to determine whether or not the error was so great that it warrants the lower court’s decision to be overturned, which in this case (if they won), would have resulted in a new trial and a second opportunity to win this case. The district court found no abuse of judicial discretion, so it refused to look at the underlying facts, as that is not its role in addressing this issue. Where no abuse of discretion is found, the decision remains. And that’s exactly what happened here. This case was reviewed de novo, which means the appellate court was simply asked to determine whether or not the lower courts correctly applied the law, and Judge Smith found that it did. Decision affirmed.

Copyright protects original works of authorship fixed in tangible mediums of expression. The definition in itself requires that the works contain a modicum of originality and be fixed in a form that can be physically held. Failure to meet these requirements means copyright protection is unavailable. Here, there was no copyright protection in the sound recording because of the 1909 Act, but evidence from the Estate’s musicologists relied heavily on the unprotected sound recording. Anyone who heard the two songs would definitely hear the similarities, but the reality is the underlying musical composition was NOT COPIED. And protection only lied within the musical composition.

The most important part to take away from this decision is this – the majority judges in this case have made a sharp turn from copyright precedent in deciding in favor of the Estate. It allowed the testimony of the Estate’s experts with regard to un-copyrightable subject matter and decided that in essence “musical style” is protected by copyright. Where is the fixation of musical style? How might one determine that? Why is Bruno Mars not being sued by every 90s hip hop and R&B artist, as his “musical style” is very reminiscent of plenty of famous artists of the 90s? In this case, there was no actual comparison of the two musical works – which were not copies of one another.

Judge Smith vehemently opposes any notion that this decision was made to have a chilling effect on artistic expression and copyright protection and bases her decision on the limitations placed upon appellate courts when a case is presented for review. And she is correct that their role is limited on appeal, however, her adherence to the strict letter of the law, does not take into consideration the precedent that was created by this decision that is in stark contradiction of the Copyright Act of 1976 and plenty of decisions before it. I want this case to go to the Supreme Court. Because this is actually ridiculous. I’m always rooting for the artist and wanting them to get credit when credit is due, but in this case, boundaries were crossed, and justice was certainly not served.

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