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In what very well could be the end of the line for Robin Thicke and Pharrell Williams, the 9th Circuit Court of Appeals has voted to deny a rehearing of the controversial “Blurred Lines” case. As a result, a jury’s 2015 verdict that found the popular song was an infringement of Marvin Gaye’s “Got to Give It Up” stands.
Gaye’s family prevailed at a jury trial in 2015, and the trial court’s judgment was then largely affirmed by the 9th Circuit in March. Thicke and Williams must fork over millions in profits to Gaye’s children, who will also be entitled to a 50 percent running royalty on future exploitation of “Blurred Lines.” The appeals court did, however, reverse liability for rapper T.I (aka Clifford Harris Jr.).
The highlights of the appellate decision were the conclusion from Circuit Judge Milan D. Smith Jr. that Gaye’s song was entitled to broad protection and that the trial judge didn’t abuse discretion in allowing certain testimony from the Gayes’ music experts, which allegedly incorporated opinions about non-copyrighted elements. There was also discussion about Williams side’s failure to make a motion for judgment as a matter of law at trial — a technical procedural point, but an important one that the 9th Circuit determined limited its ability to change an outcome that some critics, including Judge Jacqueline Nguyen in a dissent, argued would chill musical creativity.
In voting to deny rehearing en banc, the 9th Circuit issues an amended opinion (read here), but it’s largely the same as the one put forward months ago. The big change — if any — is the intriguing deletion of language on how the 9th Circuit adheres to the “inverse ratio rule,” which means that the greater the access, the lesser the showing of substantial similarity is required. As applied to this case, because Marvin Gaye’s song was so popular that access by Thicke and Williams was undisputed, the burden of proving substantial similarity was lowered accordingly. A paragraph on this topic has been removed from the majority opinion by Smith.
Thicke and Williams can attempt to petition the Supreme Court for review, but the high court only takes a small fraction of cases and usually ones presenting an appellate circuit split on interpretation of law. The “Blurred Lines” appeal turned on an evidentiary challenge rather than a big constitutional issue. Thus, it appears to be a huge long shot for the Supreme Court to take up this case, although amicus briefs may at least gather some attention from the justices.
“To say that this is satisfying would be the biggest understatement of my life,” says Richard Busch, the attorney who represented Nona and Frankie Gaye. “This has been a long and winding road for the Gaye family and our entire team, in which we had to fight every step of the way. But we were up to the challenge every time, and justice has prevailed. As I said after the trial victory in this case, what is great about this country is that the rule of law prevails no matter who you are or how many friends you have that will support you. Nobody is above it. And this case is the prime example of that fact.”
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