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$7.4M 'Blurred Lines' Award Sounds Risk Of

IP Jury Trials
By Daniel Siegal

Law360, Los Angeles (March 11, 2015, 11:14 PM ET) -- A California federal jurys
verdict Tuesday that Blurred Lines infringed a Marvin Gaye song to the tune of
nearly $7.4 million, despite a fierce legal defense that even succeeded in
preventing them from hearing Gayes actual recording, highlights the dangers of
the human element when juries are asked to determine similarities between
copyrighted musical works, lawyers say.
After a weeklong trial and over two days of deliberations, the jury found that pop
stars Robin Thicke and Pharrell Williams copied Gayes 1977 hit Got to Give It Up
when they wrote their smash hit Blurred Lines, despite U.S. District Judge John
Kronstadts ruling before trial that Gayes children own only the copyright for the
songs written composition, not its sound recording.
The distinction between the musical composition, as embodied in a piece of sheet
music deposited with the Library of Congress when the song was copyrighted, and
the actual song as it appears on the record Live at the London Palladium, was a
constant point of emphasis for Thicke and Williams attorneys throughout the
trial.
During the trial, the stars attorneys repeatedly asserted that the similarities the
Gayes had alleged between the two songs including percussion, hand claps,
falsetto singing and recorded party sounds werent written down anywhere in the
deposited sheet music and thus couldn't form the basis of infringement.
When the question is put to a jury, however, parties defending their musical
intellectual property run a significant risk that layperson jurors wont be able to
isolate specifically copyrighted musical elements from a song as a whole, according
to Roger Behle, head of Foley Bezek Behle & Curtis LLPs intellectual property
department. Behle said that just because jurors didnt hear Gayes actual recording
during the trial doesnt mean they couldnt fill in the blanks mentally when making
a determination of whether the two songs are substantially similar.
Most of these jurors have probably heard the actual Marvin Gaye sound
recording ... you can imagine people clapping their hands, he said. I dont think
its a big leap for a jury to say, 'I'm hearing your sanitized version, and I can still
hear where this came from.
"Blurred Lines," which featured rapper Clifford "T.I" Harris, was the best-selling
single in the world in 2013, spending months atop the U.S. and international music
charts. The song has sold more than 7 million copies, and the official video has
been played hundreds of millions of times on YouTube.
But Gayes family accused Williams and Thicke of stealing important aspects of "Got

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to Give It Up" and trying to profit off Gaye's work. In August 2013, Thicke, Williams
and Harris launched a preemptive case, seeking a declaratory judgment that
their song was noninfringing. Gayes children, who inherited their fathers
composition copyrights, countersued two months later, also naming Universal
Music Group as a defendant.
Judge Kronstadts January decision to bar Gayes actual recording of Got to Give It
Up from the trial and instead to allow the parties to put together their own
versions of the music in the copyrighted sheet music left the parties in a battle over
who made a better compilation tape, according to Glen Rothstein of Greenberg
Glusker Fields Claman & Machtinger LLP, who represents entertainment industry
clients in intellectual property licensing and copyright matters.
The weeklong trial featured days of testimony from musicologists, including
Judith Finell for the Gayes and Sandy Wilbur for Thicke and Williams, and hours of
examination and cross-examination focused on whether the notes used in Blurred
Lines are also written in the Gaye sheet music.
A juror told Law360 after the verdict was read that testimony from the Gayes
expert witness, Finell, about a constellation of similarities between the two songs
that could not be chalked up to coincidence was a major factor in the jurys
decision.
Corey Field, a former composer who practices copyright law for Ballard Spahr LLP,
noted that while most music copyright cases dont make it past summary
judgment, as district judges have a strong track record of comparing written music,
a jury presented with a musicologists breakdown may not be able to discern
between commonly used musical tropes and a unique, protectable element.
The problem when you go down to the molecular level is, even if they line up, are
they original notes that deserve someones propriety sole ownership or not? he
said.
Field said he thought the real takeaway from the case was that Williams and Thicke
brought the dispute into the courts with their declaratory judgment action and lost
a point emphasized Tuesday by the Gayes attorney Richard Busch of King &
Ballow, who said the Gayes had wanted to resolve the matter outside of court,
before Thicke and Williams sued.
Field said that in the wake of the verdict, lawyers for musicians may have to
counsel their clients against bringing disputes into the court even when they believe
as any party must when filing a declaratory judgment action that they have a
strong case.
The whole point of filing that case is the vindication, he said. Thats the
cautionary tale, you can file a declaratory judgment and lose this way.
Rothstein also mentioned the role that attorneys have to play when representing
successful artists who will want the vindication the courts can provide and who are
firm in their belief in their own creative process.
If youve got a megastar who is convinced that, 'Yeah, I grew up loving Marvin
Gaye, and Im not ashamed to say I love Marvin Gaye, but you cant tell me how to
write my songs, and this isnt a rip off' ... theyre going to want vindication, he
said.
And intellectual property attorney Jeffrey S. Kravitz of Fox Rothschild LLP said that
prominent artists may need to begin using counsel to review their works before
they are released to buffer against infringement claims, as is commonly done for
television and film scripts.

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Attorneys agree that the outcome of the "Blurred Lines" case came down to the
specific facts presented to the jury and thus is unlikely to have any major
precedential effect. Regardless, Rothstein said, the verdict highlighted the danger
of relying on a jury in a music copyright case.
You can never ever, ever dismiss the human element when you have a jury, he
said. "It could have come down to who did they like better. ... That stuff plays
before a jury; thats why so few cases of this ilk get to a jury.
Thicke and Williams are represented by Howard E. King, Stephen D. Rothschild and
Seth A. Miller of King Holmes Paterno & Berliner LLP.
The Gayes are represented by Paul H. Duvall, Richard S. Busch and Sara R. Ellis of
King & Ballow, Mark L. Block of Wargo French LLP and Paul N. Philips.
The case is Pharrell Williams et al. v. Bridgeport Music Inc., case number 2:13-cv06004, in the U.S. District Court for the Central District of California.
--Additional reporting by Brandon Lowrey and Bill Donahue. Editing by Kat
Laskowski.
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