The “British Rule” of loser pays shouldn’t apply in the copyright fight between Pharrell Williams, Robin Thicke and Marvin Gaye’s heirs, according to the musicians’ attorney.
In a verdict that sent shockwaves throughout the music industry, a jury last March ruled against the superstar duo behind “Blurred Lines,” finding the track infringed on Gaye’s 1977 hit “Got to Give It Up.” A judge later awarded $5.3 million in damages plus 50 percent of the song’s future royalties to Gaye’s heirs.
In January, the Gayes’ attorneys added a staggering tab: proposing almost $3.5 million in fees and expenses to be reimbursed.
Howard King, the attorney for Williams and Thicke, wrote in a opposition brief filed Wednesday that there can be blurred lines in some fee awards but that isn’t the case here, and requested the fees and costs requested be denied or at least greatly reduced.
“If ever there was a case where the close nature of the dispute, the novel legal issues, and the important matters at stake merited denial of fees, this is that case,” King wrote. “If fees are awarded here, it would send a message to anyone accuse[d] of infringement that, regardless of any legitimate basis to defend or serious questions as to the merits, a loss will necessarily result in an award of fees.”
The Gaye family’s attorney Richard Busch responded to a request for comment by pointing out it was Williams and Thicke who fired the first legal round in this case and their original complaint seeking declaratory relief included a request for fees.
“They made it a point of asking the Court to award them fees if they won, and, as we pointed out in our motion, used the threat of fees proactively,” said Busch. “As a result, we believe they really have no right to now argue that it is not fair for fees to be awarded to the Gaye family.”
In their court filing, Team Thicke also questions the “breathtaking” six-figure paycheck requested for musicologist Judith Finell, and says that defense counsel went through three other experts before finding one who agreed the songs were substantially similar.
A declaration from musicologist Gerald Eskelin was filed as a supplement to the fee opposition. Eskelin said he was hired by Busch in 2013 and found there was no musicological evidence that “Blurred Lines” copied “Got to Give It Up.”
After giving his opinion, Eskelin did no further work on the case but followed it in the media, and published a scathing report on the lack of substantial similarity between the two songs.
“It should be clear that the accusing musicologist [Finell] could not find anything of substance to support her opinion that ‘Blurred Lines’ infringes ‘Got To Give It Up,’” Eskelin wrote in a Facebook post after the verdict was announced. “Therefore, she evidently chose to present insignificant bits and pieces hoping that no one would notice. Either she honestly doesn’t understand the difference between protectable musical expression and commonplace public-domain vocabulary or she chose to avoid the topic in order to please her clients.”
Musicologist testimony will likely dominate discussion in the appellate court, as it has been the centerpiece of conversation in the music industry.
Busch did not comment on statements regarding Finell or Eskelin in the opposition, but said they will directly address the specifics when they file a reply.