Love it or hate it, the “Blurred Lines” case became a signature moment this past decade after Pharrell Williams, Robin Thicke and a song publisher were ordered to pay nearly $5 million for infringing the copyright to Marvin Gaye’s “Got to Give It Up.” The 2015 jury verdict, largely upheld last year on appeal, signaled that even an international chart-topper wasn’t immune from an allegation of plagiarism in a court of law. Quite a number of musicians have voiced displeasure with an outcome they believed could chill creativity. Pretty much everyone, though, figured the case was over. Well, it’s not.
On Friday, the Marvin Gaye family filed a motion that proves that no controversy will rest in peace especially when stars live in the public sphere. The filing points a California judge’s attention to a Pharrell Williams interview published in early November by GQ Magazine. The hit maker discussed his behind-the-scenes production process and how when he finds something he likes, he “reverse engineers” the feeling he gets from listening to that music.
“I did that in ‘Blurred Lines’ and got myself in trouble,” he told Rick Rubin during the interview.
Uh-oh. Does that conflict with his testimony under oath during a deposition during the “Blurred Lines” case?
“I did not go in the studio with the intention of making anything feel like, or to sound like, Marvin Gaye,” Williams said during his deposition.
The Gaye family, still represented by litigator Richard Busch, believes this constitutes a fraud on the court and evidence of perjury. And they demand consequences. The motion stops short of requesting that U.S. District Court Judge John Kronstadt refer the matter to federal prosecutors for potential criminal prosecution. But with the theory that the truth may have led the judge to rule differently on summary judgment and avoided a trial altogether, the Gayes also want the judge to revisit his decision to deny an award of millions in attorney fees.
“Williams made intentional, material misrepresentations to the jury and this Court as part of an unconscionable scheme to improperly influence the jury and the Court in their decisions,” states a motion for relief. “Nothing was more central to this case than whether ‘Got To’ or Marvin Gaye was on Williams’s mind while he was engaged in creating ‘Blurred.’ That fact was central to the issue of whether Williams and Thicke illegally copied ‘Got To’ and whether their copying was willful, and they knew it. It was also central to their defense of ‘independent creation.’ And it became central in this Court’s analysis of whether to award attorneys’ fees.”
“The November 4, 2019 Interview now flies in the face of those previous sworn denials,” the motion continues.
An attorney for Williams declined comment about the latest motion.
During the GQ interview, Williams said the “Blurred Lines” case was trying on him emotionally. The allegations “hurt my feelings, because I would never take anything from anyone,” said the star musician. “It really set me back.”
Williams added that Stevie Wonder once told him about the importance of finding the right musicologists because juries don’t understand the technicalities of songwriting.
“The song [“Blurred Lines”] is nothing like the song [“Got to Give It Up”],” said Rubin.
“Nope, but the feeling was,” replied Williams, pointing his finger for emphasis.
“Yeah, but the feeling is not something you can copyright,” retorted Rubin.
“No, you can’t copyright a feeling,” agreed Williams. “All songs sound pretty much the same.”
The Ninth Circuit Court of Appeals disagreed with Williams’ position in the case.
His attorneys argued that Gaye was only entitled to a “thin” copyright, a doctrine that derives from a Supreme Court decision that analyzed whether phone books were entitled to protection. The high court held that facts couldn’t be copyrighted, but that the selection and arrangement of facts could be protected so long as the choices were minimally creative. The Supreme Court then added that this only merited “thin” protection because creativity in arranging was constrained by the limited number of variations. As a result, to prove infringement of a “thin” copyright, plaintiffs need to demonstrate virtual identicality.
Rejecting the proposition that songwriting operates similarly to a creative arrangement of facts and should be afforded wide latitude in copyright disputes, Circuit Judge Milan D. Smith Jr. wrote, ” Musical compositions are not confined to a narrow range of expression.”
Now it’s up to a federal judge to decide what to do about the GQ interview.
The Gayes and Busch still want about $3.5 million in attorney fees.
In April 2016, Kronstadt ruled that fee-shifting wasn’t appropriate given novel issues raised during the “Blurred Lines” case (“the litigation could reasonably be seen as contributing to at least an informed discussion on the demarcation of copyright law”) along with a view that the litigation from the “Blurred Lines” creators was hardly frivolous.
While the Gayes previously attempted to point to how Williams’ deposition was inconsistent with what he had said before the lawsuit, the judge shrugged it off. He ruled, “It is not uncommon for those promoting a new song or creative work within the entertainment industry to seek to attract attention that will be conveyed to potential consumers. This may result in increased sales of the work, and greater attention to the artist. Such statements are not ones made under oath. Consequently, it is not unreasonable for the same person to make different statements should he or she be placed under oath in subsequent litigation of the same or related issues.”
Now the question becomes whether a different assessment is called for because of post-litigation commentary. Does what Williams told Rubin — not under oath, but this time without the profit motive — cast what happened during the “Blurred Lines” case in any sort of objectionably unreasonable light?
States the Gayes’ motion (read in full here), “Significant punishments for perjury are commanded whether viewed under federal or state law, and given Williams’s lack of promotional reasons for making his admissions in the November 4, 2019 Interview, this Court should take special consideration of the credibility of his recent admissions.”
“Williams’s behavior seems akin to the entitled conduct of those taking part in the college admissions scandal,” continues the motion. “Like others who are not celebrities, those who do in fact wield the power of celebrity should not be permitted to do or say whatever they want without repercussions.”