On Wednesday, March 21, 2018, a panel of the United States Court of Appeals for the Ninth Circuit ruled that the song Blurred Lines infringed the copyright in Marvin Gaye’s song Got To Give It Up. See Williams v. Gaye, No. 15-56880. Affirming most of the decision of the district court, the Ninth Circuit also held that the award of actual damages and infringers’ profits, and a running royalty, were all proper. The panel did, however, reverse a piece of the district court ruling, finding that the district court erred in overturning the jury’s general verdict in favor of certain parties because the defendants waived any challenge to the consistency of the jury’s general verdicts.
“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,” explains J. Michael Keyes is a partner at the international law firm Dorsey & Whitney in its California office. “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 dissent, Judge Nguyen wrote that Blurred Lines and Got To Give It Up were not objectively similar as a matter of law, believing the songs differed in melody, harmony, and rhythm. Nguyen agreed with the defendants that finding copyright infringement was tantamount to allowing Gaye’s estate to own a copyright in a musical style.
To be polite, Nguyen’s characterization that the decision allows copyrighting of a musical style is simply inaccurate. To reach such a conclusion one must really ignore the facts presented by the plaintiff.
Immediately after the case was filed, on August 19, 2013, I wrote: “There is absolutely no doubt from a legal perspective that Thicke and Williams are infringing the work of Marvin Gaye… The similarity is overwhelming.” I then on August 20, 2013, I wrote: “When all is said and done Robin Thicke and Pharrell Williams will pay the family of Marvin Gaye because this is clearly copyright infringement.” My opinion has not changed in the ensuing years, and was only bolstered by the actual evidence submitted in the case.
How Judge Nguyen could write (or believe) that the two songs are not objectively similar is curious. Still, she goes further and would have found that there was absolutely no similarity whatsoever. The conclusion reached by Judge Nguyen that there is no similarity whatsoever, other than the two songs be “compositions of stars”, is directly contradicted in her own dissent a few paragraphs later, when she admits that Pharrell Williams and Robin Thicke do not contest the existence of similarities. Apparently, Nguyen on one hand would have found there to be no similarity whatsoever, and on the other hand is willing to admit that even the defendants agreed there were similarities. It seems what Nguyen is saying is that in her mind the similarities that do exist, and were admitted to exist, are legally insignificant. So insignificant were the admitted and actual similarities that Judge Nguyen believed they were only superficial and, therefore, warranted overturning a jury verdict.
Appellate judges are not supposed to reweigh the evidence and overturn a jury verdict because they disagree with factual findings. Furthermore, when the defendants admit to similarities it is disingenuous to take the position that there are no similarities whatsoever. Still further, the Ninth Circuit has a well established body of law that steadfastly refuses to disturb jury verdicts, and in particular when those verdicts relate to the alleged infringement of a copyright in music.
The panel decision, authored by Judge Smith and joined by Judge Murguia, correctly found there to be substantial evidence to support the jury verdict on infringement. While disturbing a jury verdict on appeal requires a heavy burden when the appeal is based on the jury erring on a matter of fact, in the Ninth Circuit there is even more reluctance when the case involves music copyright infringement. Citing Three Boys Music, 212 F.3d 477 (9th Cir. 2000), the panel majority explained there is extreme reluctance to overturn verdicts in “music cases” given the difficulty of proving access and substantial similarity. The panel majority even pointed out that in Three Boys Music the plaintiff presented a weak case of access and nothing more than circumstantial evidence relating to similarity. See footnote 17. Nevertheless, in Three Boys Music it was still deemed inappropriate to disturb the jury verdict.
Although Judge Nguyen in dissent charged the panel majority with not considering whether the two songs are substantially similar, the decision of the panel rather directly shows that was not the case at all. The panel majority correctly refused to engage in a de novo review of the facts that would render the jury verdict merely advisory, but that is very different than what Nguyen charges the panel with doing. Indeed, the panel decision specifically points to evidence on the record showing there were numerous similarities. The panel decision reads in part:
Finell testified that nearly every bar of Blurred Lines contains an area of similarity to Got To Give It Up. Even setting aside the three elements that trouble the Thicke Parties (“Theme X,” the bass line, and the keyboard parts), Finell and Dr. Monson testified to multiple other areas of extrinsic similarity, including the song’s signature phrases, hooks, bass melodies, word painting, the placement of the rap and “parlando” sections, and structural similarities on a sectional and phrasing level. Thus, we cannot say that there was an absolute absence of evidence supporting the jury’s verdict.
Thus, not only couldn’t the panel say there was an absolute absence of evidence, despite the protestations of Judge Nguyen in dissent, there was ample evidence to demonstrate substantial similarity. That being the case, it is simply inappropriate to disturb a jury’s verdict, particularly in a copyright infringement dispute in the Ninth Circuit. What Judge Nguyen wanted, which was an independent reevaluation of the evidence to reach a different determination on the facts, is simply inappropriate on appeal.
This decision from the Ninth Circuit is particularly relevant for another reason. The Led Zeppelin Stairway to Heaven appeal remains pending before the Ninth Circuit, and the panel decision leaves undecided one important technical issue that will have great significance in that case.
“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 (the sheet music) or whether the sound recording can be considered as defining the scope of protection,” Keyes explained. “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.”
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