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The “Blurred Lines” trial has entered jury deliberation.
The verdict will end two weeks of proceedings over whether Robin Thicke, Pharrell Williams and T.I. copied their hit from the Marvin Gaye song “Got To Give It Up.” The late soul legend’s children Frankie and Nona Gaye claim “Blurred Lines” is too similar to the copyright they hold for sheet music to their father’s composition. If the jury agrees, the musicians and their record companies could face $25 million in damages.
There won’t be a verdict Thursday. The jury started deliberating around 4 p.m., and Judge John Kronstadt permitted them to leave an hour later. They’ll reconvene on Friday as early as 8 a.m.
The trial moved swiftly on its seventh day, with no witnesses called despite expectations Thicke’s manager Chris Knight or Thicke himself might testify. The Gayes’ lawyer Richard Busch presented no rebuttal, either.
In his closing argument, Busch revised his estimate of alleged damages, which he tallied early in the proceedings at about $40 million. His $25 million tally breaks down in several ways. He brought up of CPA Gary Cohen‘s testimony that the publishing revenue for “Blurred Lines” totaled $8 million, then referenced licensing expert Nancie Stern‘s testimony the licensing agreement to borrow from the Gaye composition would’ve been 50 percent of publishing revenue if negotiated before the song’s release. But if the musicians only licensed the song following its release, the percentage might’ve been 75 to 100 percent, or $8 million.
Then there’s the profit from the song, which was revealed in court on Tuesday to be $16.7 million for the musicians and the record companies. The nonpublishing profits were about $10 million, said Busch. If they find “Blurred Lines” infringing, the jury will give the Gayes the same percentage of the $10 million in nonpublishing revenue they did of the $8 million in publishing.
Finally, there’s record company overhead for the production of the song. That’s roughly $7 million, said Busch. Whether the $7 million in overhead is added to the damages is contingent on whether the jury thinks the copyright infringement was willful or innocent. Busch counseled the jurors to say it was willful from every opposing party — except T.I. (or Clifford Harris Jr.), because his verse was inserted into the song months after recording. “I would not say Mr. Harris’s infringement was willful,” said Busch.
He told jurors the case is about honesty. “What it boils down to is ‘yes, we copied. Yes, we took it. Yes, we lied about it. Yes, we changed our story every time,'” he said. “It boils down to this: Who do you believe?” He told the jury. “Are you going to believe Robin Thicke, who told us all he’s not an honest person?”
Thicke and Williams’ attorney Howard King told the jury in his closing statement the case comes down to his clients’ integrity. “Why would Mr. Williams need to copy anyone to create a hit?” he asked. “Why would Mr. Thicke and Mr. Williams endure a proceeding like this, where their personal financial details are revealed to the world?” The musicians’ earnings from “Blurred Lines” ($5,658,214 to Thicke, $5,153,457 to Williams) came out in court Tuesday.
It’s about artistic freedom, King continued. “The wrong decision here will stifle musicians and the record companies that finance them [in signifying] that you cannot honor a genre, a style or a groove,” he said. “This is more important than money. This affects the creativity of young musicians.”
Busch summarized the testimony of musicologist Judith Finell, who diagrammed eight similarities in the songwriting of “Blurred Lines” and the Gaye composition. “There are only two bars in the entirety of ‘Blurred Lines’ in which an element of ‘Got To Give It Up’ does not appear,” said Busch. “Nothing happens in a song randomly,” he continued. “These substantial similarities are not coincidence.”
But King had less kind words for Finell, who was in court Thursday. “The biggest distraction in this case is this woman here, Judith Finell,” he said. He argued she’d started her analysis without considering the sheet music of “Got To Give It Up,” then referred to the sheet music once she’d invested lots of time in analyzing the songs. He claimed she engineered diagrams and musical recordings based on what she felt the sheet music indicated, not what’s written.
With the scope of the case narrowed to the sheet music in recent rulings, the attorneys now dispute what exactly the sheet music itself indicates. In the view of the Gaye family, it’s a template called a “lead sheet,” on which professional musicians are meant to expand with features like keyboard rhythms and bass line pitch shifts. Thicke and Williams’ legal teams argue the opposite — that what the Gayes own is confined to the notes in black and white on the copyrighted sheet music.
Busch in turn criticized the musicologist Thicke and Williams’ attorneys called to the stand earlier in the week, Sandy Wilbur. “Ms. Wilbur was concentrating on difference between the songs and avoiding the similarities,” he said.
The attorneys agreed on one thing, however.
“The Thicke parties want to draw you attention away from what they copied,” said Busch.
“Distractions and diversions having nothing to do with [the songs] have made up 90 percent of this case,” echoed King.
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