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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES – GENERAL

Case No. LA CV13-06004 JAK (AGRx) Date February 6, 2015 Title Pharrell Williams, et al. v. Bridgeport Music, Inc., et al.

CV-90 (10/08)

CIVIL MINUTES - GENERAL

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Present: The Honorable JOHN A. KRONSTADT, UNITED STATES DISTRICT JUDGE Andrea Keifer Not Reported Deputy Clerk Court Reporter / Recorder Attorneys Present for Plaintiffs: Attorneys Present for Defendants: Not Present Not Present

Proceedings: (IN CHAMBERS) ORDER RE DEFENDANTS’ EX PARTE APPLICATION FOR CONTINUANCE OF TRIAL, RECONSIDERATION OF GRANTING MOTION IN LIMINE NO. 1-3 AND CERTIFICATION OF QUESTION FOR INTERLOCUTORY APPEAL (DKT. 232)

I. Introduction

On January 29, 2015, Frankie Christian Gaye, Marvin Gaye III, and Nona Marvisa Gaye (“Defendants”) filed an ex parte application (“Application”), in which they seek relief from several prior rulings in this matter. Dkt. 232. These concern the scope of what is protected by the copyrights in compositions Defendants claim to own, and the evidence that will be admissible at trial with regard to these compositions. Dkts. 139, 226, 231. The compositions at issue are “Got to Give It Up” and “After the Dance.” These songs were composed, recorded and performed by Defendants’ father, Marvin Gaye. The prior rulings concluded that, based on the evidence submitted regarding what Defendants own, the Copyright Act of 1909 (“1909 Act”) limits what is protected by their copyrights. Thus, the protection is of the musical elements that appear in sheet music deposited with the Copyright Office in 1976 and 1977. Dkt. 139 at 8-12. Accordingly, the rulings determined that it would be confusing and unduly prejudicial to admit at trial sound recordings that contained several elements not present in the sheet music along with the elements that are. Dkt. 226. Upon further reflection, the Court

sua sponte

revised this ruling so that the admission of edited sound recordings would be considered in which certain elements not present in the sheet music had been removed through digital processing. Dkt. 231. Under this approach, the voice of Marvin Gaye, as well as certain other elements of the sound recording, could be deemed admissible at trial.

Id

. Defendants seek three kinds of relief from these rulings. First, they urge a further reconsideration of them, and claim they are “not supported at all by the 1909 Copyright Act or case law interpreting it.” Dkt. 232-1 at 13. Second, they seek the certification of an interlocutory appeal to the Ninth Circuit pursuant to 28 U.S.C. § 1292(b).

Id.

at 26-28. Third, they seek a stay of the trial, which is currently scheduled to begin on February 10, 2015.

Id.

29. For the reasons stated in this Order, the motions for reconsideration and for the certification of an interlocutory appeal are

DENIED

. The trial date is continued to February 17, 2015; provided, however, a further continuance may be necessary if a criminal trial that is presently scheduled for that date goes forward.

Case 2:13-cv-06004-JAK-AGR Document 251 Filed 02/06/15 Page 1 of 11 Page ID #:7495



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II. Factual and Procedural Background

A. The Copyright Infringement Claims at Issue On August 15, 2013, Pharrell Williams, Robin Thicke and Clifford Harris, Jr. (“Plaintiffs”) brought this declaratory relief action against Defendants. Dkt. 1. Plaintiffs sought a declaration that their song “Blurred Lines” did not infringe on the copyright in “Got to Give It Up.”

Id.

¶ 11. On October 30, 2013 and November 19, 2013, Defendants filed Counterclaims against Plaintiffs and other Counterclaim-Defendants. Dkts. 14, 36. Defendants claimed that they were “co-owner[s] of the musical compositions ‘Got to Give it Up’ and ‘After the Dance,’” “as registered with the United States Copyright Office.” Dkt. 14, ¶¶ 11-13; Dkt. 36, ¶¶ 22-23. Defendants alleged that several Counterclaim-Defendants, including Plaintiffs, infringed the copyright to “Got to Give It Up” through their involvement in the recording, reproduction, performance or sale of “Blurred Lines.” Dkt. 14, ¶¶ 72-91; Dkt. 36, ¶¶ 36-53. Defendants also alleged that Thicke and other Counterclaim-Defendants, through their involvement in the recording, reproduction, performance or sale of another song, “Love After War,” infringed Defendants’ copyright in “After the Dance.” Dkt. 14, ¶¶ 92-112; Dkt. 36, ¶¶ 54-72. B. The October 30, 2014 Order on Plaintiffs and Counterclaim-Defendants’ Motion for Summary Judgment On October 30, 2014, the Court issued an Order on the Motion for Summary Judgment of the Plaintiffs and Counterclaim-Defendants in this action (“MSJ Order”). Dkt. 139. In connection with this Order, it was necessary to determine the scope of the copyrights claimed by Defendants. Because Defendants claimed ownership in works registered with the Copyright Office in 1977 and 1976, respectively, the Copyright Act of 1909 (“1909 Act”) determined the scope of their ownership.

Dolman v. Agee

, 157 F.3d 708, 712 n.1 (9th Cir. 1998). The 1909 Act sets forth procedures for securing copyrights that differ from those that apply under the Copyright Act of 1976 (“1976 Act”), which took effect on January 1, 1978.

Id.

Under the 1909 Act, either the “publication” of a work with notice or the deposit of a manuscript copy with the Copyright Office was required. Under the 1976 Act, copyright protection automatically applies to original works of authorship when they are “fixed in any tangible medium of expression.”

Compare

Act of March 4, 1909 (“1909 Act”), ch. 320, §§ 9, 11-12, 35 Stat. 1075, 1078 (1909 Act provisions),

with

17 U.S.C. § 102 (1976 Act provision). Under the 1909 Act, the distribution of musical recordings did not constitute the “publication” needed to secure ownership. Under the 1976 Act, musical compositions are eligible for protection when they are fixed in “phonorecords,” which include master recordings.

Compare

17 U.S.C. § 303(b) (codifying 1997 amendment to the 1976 Act providing that “[t]he distribution before January 1, 1978, of a phonorecord shall not for any purpose constitute a publication of the musical work embodied therein”);

ABKCO Music, Inc. v. LaVere

, 217 F.3d 684, 691 (9th Cir. 2000) (this amendment had retroactive effect because it “was a ‘statement of what [the 1909 Copyright Act] has meant all along’”) (bracketed text in original),

with

17 U.S.C. §§ 101, 102 (1976 Act provisions). In connection with the Motion for Summary Judgment, the parties submitted evidence that Marvin Gaye’s publisher, Jobete Music, Inc., registered the copyrights in “Got to Give It Up” and “After the




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Dance” in 1977 and 1976, respectively. Dkt. 91-2, Exs. A-B. In connection with these registrations, Jobete deposited sheet music for each song with the Copyright Office.

Id.

Exs. C-D. No other evidence was submitted that showed the compositions were reduced to musical notation.

1

The declarations and reports of the parties’ respective experts suggested that some elements of these sound recordings appeared in the copyright deposits, but others did not. Dkt. 139 at 3-5. Defendants’ Counterclaims did not assert a federal or common-law copyright interest in the sound recordings themselves, nor was evidence of any such interest submitted. However, it was Defendants’ position that some elements unique to the sound recordings were also protected by their copyrights in the compositions. Dkt. 120 at 27-30. On review of the applicable statutory and decisional law, the Court disagreed, for the reasons summarized above. Dkt. 139 at 8-12. However, the MSJ Order denied the Motion for Summary Judgment brought by Plaintiffs and Counterclaim-Defendants because a reasonable jury could find, based on the evidence presented, that Plaintiffs and Counterclaim-Defendants’ works were substantially similar to those of Defendants, and that Plaintiffs and Counterclaim-Defendants had copied protected, original constituent elements of Defendants’ works.

Id.

at 13-28. The Ninth Circuit employs a two-part analysis to determine whether works are substantially similar: “an objective extrinsic test and a subjective intrinsic test.”

Swirsky v. Carey

, 376 F.3d 841, 845 (9th Cir. 2004),

as amended on denial of reh'g

(Aug. 24, 2004). Only extrinsic similarity is considered on summary judgment, and so the MSJ Order applied only the extrinsic test.

Id.

The intrinsic test, which “is subjective and asks whether the ordinary, reasonable person would find the total concept and feel of the works to be substantially similar,” is to be applied by the factfinder at trial.

Three Boys Music Corp. v. Bolton

, 212 F.3d 477, 485 (9th Cir. 2000) (internal quotation marks omitted). C. The January 26, 2015 and January 28, 2015 Evidentiary Orders On January 6, 2015, Plaintiffs filed a motion in limine to exclude evidence of the Marvin Gaye sound recordings at trial. Dkt. 165. Plaintiffs argued that it would be confusing and prejudicial for the jury to listen to these recordings because they contained “substantial additional musical elements in which Defendants do not own any copyright.”

Id.

at 16. Defendants opposed this motion, and reiterated their position that their copyrights in the compositions were not limited to the sheet music, but also encompassed material in the sound recordings.

Id.

at 3-7. In addition, they argued that proper analysis under the intrinsic test would be “impossible” if the jury could not consider the sound recordings.

Id.

at 9-11. At the January 26, 2015 hearing on this motion in limine and 16 others, the Court adhered to the legal analysis set forth in the MSJ Order, and granted the motion to exclude the sound recording evidence, “provided, however, Defendants may present modified versions of the sound recordings to Plaintiffs for

1

Defendants represented that that a sound recording of “Got to Give It Up” was released in 1977 on the album

Live at the London Palladium

, and that a sound recording of “After the Dance” was released in 1976 on the album

I Want You

. Dkt. 120 at 8, 18.
