The $5.3 million punishment against Robin Thicke and Pharrell Williams for infringing Marvin Gaye's "Got to Give It Up" to create "Blurred Lines" made quite a loud noise throughout the music industry. Since the jury's 2015 verdict, song theft claims have flourished, and some recording stars like Sam Smith and Ed Sheeran have settled allegations rather than face the music at a trial. On Friday, the "Blurred Lines" creators got an opportunity before the 9th Circuit Court of Appeals to argue why a legal error was made. But those who found the "Blurred Lines" trial result discordant may have to brace themselves for the next verse in this dispute. Not only did the three judges who heard the appeal seem skeptical about overturning the district court's judgment, but there may be decent chance that Gaye's family is in line for an even bigger victory.
At the hearing, 9th Circuit judge R. Randy Smith called the "Blurred Lines" appeal an "important" one. Twice. And he let the attorneys argue beyond their time allotments in what's often a sign that a big decision is coming.
Although the appeal is indeed significant, not to mention closely watched, it is also quite misunderstood. Even Kathleen Sullivan, the Quinn Emanuel attorney representing Thicke and Williams, nodded to this in her opening remarks.
"This case wasn't about the sound recording of 'Got to Give It Up'," she said. "It wasn't about the groove and feel of 'Got to Give It Up.' It wasn't about inspiration by the great artistry of Marvin Gaye. It was about one simple question: substantial similarity between the melody, lyrics, harmony, chords, and instrumentation in the deposit copy and 'Blurred Lines.'"
The meaning of this — Did Thicke and Williams commit copyright infringement? — turns on a technical issue.
Before the mid-1970s, sound recordings weren't protectable under copyright law. Congress changed that, but given that Gaye's "Got to Give It Up" was one of the last songs before the legislative change went into effect, his family was forced to litigate the "Blurred Lines" case under a certain disadvantage that no modern music creator would today face. Only protectable elements were given weight — and according to U.S. District Judge John Kronstadt, that meant forgoing any analysis of Gaye's original "Got to Give It Up" recording. Instead, what's protectable is whatever was expressed by the sheet music deposited at the U.S. Copyright Office. Jurors never got to hear Gaye's original song. Instead, each side had musicologists testifying about that sheet music and whether there was any substantial similarity.
The appellants are contending that Judge Kronstadt committed reversible error a few different ways. First, by not sufficiently filtering out unprotectable elements when refusing a summary judgment motion before trial. Second, by allowing the other side's musicologists to draw inferences beyond what was expressed in the sheet music. And third, by not properly instructing the jury on the need to disregard unprotectable elements like the "groove" on Marvin Gaye's hit.
Thicke and Williams, though, are now the underdogs.
"This court has never overturned a verdict in a music copyright case and this shouldn't be the first," said Lisa Blatt, the Arnold & Porter attorney for the Gayes.
Even if history doesn't stand in the way of overturning, legal procedure might.
During the hearing, the appellate judges wondered whether they were being asked to weigh in on an issue of evidence rather than on an issue of law. Trial judges are often afforded discretion on the weight of evidence. They also wondered whether they could really do anything about the summary judgment decision and whether Thicke and Williams had properly reserved issues when fighting at the trial court.
"I don't see a way to circle back," said Judge Jacqueline Nguyen. "How do you put the genie back in the bottle?" asked Judge Smith.
Sullivan fought through these hesitations, insisting that legal issues were at play, and that the appeals court simply must do something.
"If you filtered out the unprotectable elements, it would have been a different case," she said, later adding, "What happened here was a travesty. The musicologists embellished and changed the lead sheet. That's what took the case off the rails."
In contrast to the skepticism directed at the appellants, the 9th Circuit panel seemed intrigued by something put forward by the Gaye side. That being, the trial judge should never have precluded the Marvin Gaye recording in the first place.
According to the Gayes, regardless of the fact that sound recordings weren't protected under the 1909 Copyright Act, what the iconic Motown musician actually created provides the best evidence of what was copyrighted.
"The other side loses big time unless you overrule and upset every case that has been tried under the 1909 Act," said Blatt. "This is a made-up notion that artists who aren't fluent in staff notation are second-class citizens as opposed to people who wrote music."
Judge Smith in particular seemed piqued by this, noting successful musicians from the 1920s, as well as Elvis Presley, who couldn't write music. He wondered whether the law should really depend on whether someone was a "Harvard-trained musician."
"This was a Kafkaesque trial," said Blatt. "The jury was looking at a lead sheet that was never intended to be read, forced to listen to artificially created music that no one would want to listen to. And the elephant in the room was the music that Marvin Gaye composed."
Blatt added that the appeals court needn't reach the issue because she said the musicologist testimony was proper in any regard. Nevertheless, her colleague, Richard Busch, also appearing on behalf of the Gayes, added that publication isn't required to define the scope of copyright and that the act of depositing something at the Copyright Office is purely ministerial. He said it would be "bizarre" for that to become the composition itself.
On rebuttal, Sullivan stuck to her position that old sound recordings weren't protected — and that the trial had gotten out of hand by an alleged failure to heed the consequences. She said, "I think Congress would be quite shocked that it hadn't done anything in 1976."