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Nearly two years after “Blurred Lines” became an international smash, a high-profile trial will begin to determine whether the song is a copyright infringement of Marvin Gaye‘s “Got to Give It Up.”
On Friday, U.S. District Judge John Kronstadt refused the Gaye family’s attempt to certify a pre-trial appeal over not being allowed to let the jury hear Gaye’s original recording to compare it to the hit credited to Pharrell Williams, Robin Thicke and T.I. The judge pushed the start of the trial back a week to February 17 with possible further delays due to a criminal matter in the judge’s courtroom. But barring any unexpected development, the “Blurred Lines” trial will take place and present more than a week’s worth of discussion about songcraft, artist credibility and the substantial money reaped from an entertainment industry mega-hit.
The Gaye family asked for either reconsideration or a delay of the trial and a chance for an interlocutory appeal after the judge decided that because only the “Got to Give It Up” sheet music composition was copyrighted, it would be prejudicial to let the jury hear non-protected elements like Gaye’s singing, percussive choices and background vocals. Even after the judge offered up a compromise by letting the Gaye family introduce a new version of the singer’s 1977 chart-topper — one stripped of those non-protected elements — the Gaye family warned that such a ruling would be unfair to them and have a “devastating” impact on intellectual property.
In analyzing the scope of the “Got to Give It Up” copyright and the Gaye family’s contention that the composition is embodied and expressed by the recording, Judge Kronstadt looks to legislative reports informing the meaning of “publication” before 1978, when amended copyright laws went into effect. If elements in sound recordings were covered before then, the judge writes “there would have been no need to make the changes adopted by the 1976 Act.”
As to the argued impact of a ruling allowing infringers to steal classic portions of songs by artists like Elvis Presley and The Beatles, the judge simply restrains himself to the two songs (“Blurred Lines” and Thicke’s title track “Love After War”) before him in this dispute. He writes, “Defendants’ policy arguments concerning the supposed consequences of the Court’s ruling are unpersuasive.”
Judge Kronstadt does admit that the Gaye family has presented a “novel issue,” but declines to certify an interlocutory appeal because doing so “would prolong, rather than shorten, the ultimate termination of litigation.”
The judge faults the Gaye family for waiting so long to make its bid for an interlocutory appeal and points out that they could still win the case. The Gaye family could still attempt to have the 9th Circuit order up a review anyway, but more likely, if they are unsatisfied with the result of trial, the issue of whether they got a fair trial because of the judge’s copyright views would happen after a verdict.
The judge’s full order on the Gaye family’s application is below.
The Gaye family has already gone forward with submitting a new revised stripped-down version of “Got to Give It Up” to play for the jury and plans to have several musicologists testify about similarities to “Blurred Lines.”
As for the stars: Thicke is scheduled to testify and will likely face tough questions about his comments to the media; Williams will be speaking about topics ranging from the history of song production to the making and marketing of “Blurred Lines”; Clifford Harris Jr. (T.I) will give his own account of what happened in the studio; the Gaye children will discuss what led them to investigate their copyright claims; and Paula Patton, Thicke’s ex-wife actress, will speak up about “Love After War.”
There will be personal managers and sound engineers taking the witness stand too as well as those who have looked at financial accounting statements to give their analysis on damages for any copyright infringement.
Before anyone testifies, however, jurors will need to be picked, and in this case, the voir dire process will certainly be interesting — a quasi survey of how Los Angelinos feel about celebrities.
Among the questions that potential jurors will be asked besides familiarity with the parties: Does any member of the jury panel have any celebrity role models? Does any member of the jury panel think celebrities act differently publicly than they do privately? Has any member of the jury panel ever auditioned for The Voice? If video presentations of songs created by one of the parties in the case contained scenes that offended you, such as scantily clad or naked women, do you think you would still be able to make an impartial determination in this case?
Williams and Thicke are represented by Howard King, Stephen Rothschild and Seth Miller at King, Holmes, Paterno & Berliner. The Gaye family is represented by Richard Busch and Paul Duvall at King & Ballow.
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