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The family of Marvin Gaye doesn’t believe that Robin Thicke and Pharrell Williams should get a do-over of the “Blurred Lines” trial. But if there’s to be one, the 9th Circuit Court of Appeals was told on Thursday that Gaye’s copyright on “Got to Give It Up” is hardly thin and that the family deserves the opportunity to introduce as evidence the sound recording made by the Motown legend. In fact, the latter issue is described in an appellate brief as an “important and timely” one in the music industry.
Thicke and Williams are challenging the fairness of a trial examining whether they lifted substantial portions of Gaye’s 1977 chart-topper. The litigation featured the “Blurred Lines” creators explaining away their comments to the media about heading into the recording studio with Gaye’s song on their minds. During a deposition, Thicke conceded he didn’t consider himself to be an honest person. At trial, Gaye’s family had musicologists pointing to the similarities in the respective songs. A jury came back with a $7.4 million verdict, which was later trimmed down to $5.3 million plus ongoing royalties by a judge.
In August, the losing side presented the stakes to the 9th Circuit as being a “chill” on musical creativity if the verdict stood. They also spoke about a “cascade of legal errors” they claim resulted in a jury considering unprotected elements. More than 200 musicians are supporting the “Blurred Lines” creators and arguing that the judgment has eradicated “the line between permissible inspiration and unlawful copying.”
Now, it’s the Gaye family’s turn to make arguments. A parade of their supporters in the musical community could be following with an echo of this proposition from the brief filed Thursday: “This case stands for no more and no less than the fact that the original work of an artist may not be appropriated without consent and fair compensation.”
As a preliminary matter, Gaye attorney Richard Busch contends that the other side’s attempt to appeal the judge’s summary judgment ruling — the one before trial — is improper and that the 9th Circuit can’t “turn back the clock” to ignore the factual record at trial and the final judgment. Nevertheless, he believes the judge made the correct call in sending the case to a jury and applied the proper standards.
For example, U.S. District Judge John Kronstadt declined to force the Gayes to demonstrate that the songs were virtually identical to each other under the theory that “Got to Give It Up” was only entitled to a “thin” copyright.
“A music copyright is not ‘thin,'” states the brief, also taking aim at an amicus brief submitted by the nonprofit group Public Knowledge. “Music is imaginative, not strictly factual or functional. … Not surprisingly, the Thicke Parties fail to cite a single case applying the virtual identify doctrine to an original musical work.”
In truth, as much as the “Blurred Lines” case may have provoked discussion about boundaries in songcraft, the appeal will largely focus on a technical, if important, aspect of copyright law. Before trial, Kronstadt ruled that Gaye’s copyright was limited to what was expressed by the lead sheet music. That’s because until 1978, the U.S. Copyright Office would only accept written notation as the deposit copy when a registration was filed. Submitting books is easy, but how about sound recordings (not to mention paintings, software or architecture)? Gaye’s “Got to Give It Up” was one of the last recordings made that the Copyright Office wouldn’t accept.
That led to much fighting between the parties about admissible evidence in the days leading up to the trial — something that was later reprised when Led Zeppelin faced its own trial for allegedly infringing an non-deposited sound recording to create “Stairway to Heaven.”
Judge Kronstadt attempted to split the middle with a decision that left neither side truly satisfied. He ruled that the Gayes couldn’t let the jury hear the original recording, but allowed them to play a version stripped of anything (like percussion and backup vocals) not expressed in the sheet music.
On appeal, both sides are rehashing what happened, which could provide clarity about the scope of the “Got to Give It Up” copyright, and relatedly, what a fair copyright trial looks like.
Thicke and Williams assert that while the judge properly limited the scope, testimony from the musicologists hired by the Gayes nevertheless introduced opinions about the sound recording, and thus allowed unprotected elements to be weighed by a jury. Their lawyer Howard King argues to the 9th Circuit that the judge then compounded the problem by not adequately instructing the jury to distinguish between protectable and unprotectable material in its analysis of the substantial similarity of the songs.
The Gayes move in the complete opposite direction by arguing that if anything, the judgment limiting the scope and precluding the playing of the original recording favored the other side and was in error. While the Gaye family is satisfied by the outcome of a trial that saw its musicologists talking about a “constellation” of similarities in the songs — signature phrases, hooks, themes, keyboard parts, bass melody, etc. — there’s still some hard feelings, pardon the gruesome metaphor, from having the judge cut off a leg before they ran to trial.
Does the recording belong within the scope of the copyright, and even if not, should it have been permitted as the best evidence of what was copyrighted?
“The issue is of considerable importance for the many studio compositions created before 1978,” states the brief. “If protection turns on the happenstance of a decades-old (and long since abandoned) Copyright Office practice, along with the degree of attentiveness of the transcriber, an open invitation to taking will be the consequence.”
It’s further argued that the purpose of requiring a deposit with the Copyright Office is merely “archival,” identifying the work in question, and furnishing the government with an opportunity to assess the copyrightability of an applicant’s work.
“What the deposit requirement does not do is define the scope of the copyright,” writes Busch.
He also adds that the fundamental purpose of copyright laws is served by protecting the work of artists without regard to their music literacy. In the brief, it’s noted that Gaye never wrote sheet music. In fact, he didn’t know how to read music. The sheet music itself was created by someone the publisher had hired.
“Marvin Gaye is hardly the only Hall of Fame artist and composer who did not read or write notation,” states a footnote. “Motown founder and music guru Berry Gordy did not read music. Nor did Michael Jackson or Jimi Hendrix or Eric Clapton. The King, Elvis Presley, was yet another legend who composed before sound recordings could be deposited and did not know how to read or write musical notation. They and countless others created timeless, unique and original compositions before 1978. No doubt all would be surprised to learn that their compositions are protected only to the extent that a transcriber happened to notate elements on a lead sheet.”
The brief goes on to address other issues presented by Thicke and Williams including a jury instruction about subconscious copying, whether there was proper support for the award of actual damages, whether an awarding of profits was reasonable and whether a running royalty constituted an abuse of discretion. In addition to all this, the Gayes are asking the 9th Circuit to take up the judge’s refusal to award attorneys’ fees in light of a recent Supreme Court decision.
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