4:12pm PT by Eriq Gardner
Pharrell Williams Camp Ridicules "Desperate" Appeal Bid in 'Blurred Lines' Lawsuit
In the suddenly fast-moving dispute over whether Robin Thicke's and Pharrell Williams' "Blurred Lines" is a rip-off of Marvin Gaye's "Got to Give It Up," a judge has now been given the reasons why he should and shouldn't certify an immediate appeal.
On Friday, Howard King and Seth Miller, attorneys for Thicke and Williams, reacted to the Gaye family's bid to delay the trial, calling it "desperate."
The Gaye family is upset that U.S. District Judge John Kronstadt won't allow them to introduce the original "Got to Give It Up" recording at a trial next month so that a jury can compare it to "Blurred Lines." The judge has precluded use of this recording because as per the custom at the time, it wasn't deposited with the Copyright Office in the 1970s. Only the sheet music compositions are copyrighted, but what this means has triggered heavy controversy.
According to Richard Busch, attorney for the Gayes, registration is just a formality and what's important is that the sound recording was created simultaneously and embodies the composition. To hold otherwise, he argues, will pave the way for clever infringers to take the non-protected elements of pre-1978 songs by legends such as Elvis Presley and The Beatles. He also believes it will disadvantage those who didn't have enough musical education to annotate sheet music. Finally, he asserts his side won't get a fair trial if a jury can't hear the originals to make a comparison.
In response, the Williams camp tells the judge on Friday that there is no reason to reconsider the previous pretrial rulings, that the law is what it is, and there's nothing unfair or unjust about it.
"The simple fact is that, prior to 1978 (and after), compositions for popular music were considered to be the melody, harmony, and lyrics—i.e., the song," states the opposition brief. "No songwriter considered a hi-hat part, vocal 'woo,' falsetto vocal style, omission of a guitar, keyboard part, or other element of a sound recording of the song to be the song itself. And if they did, they included that element in the written composition they published with notice ...”
That offers a taste of why the case would set up an important fight that's sure to be closely watched if — and this is a big if — it did go up on appeal. It would amount to a strict reading of copyright law that sets limitations on copyright even under painful circumstances vs. a broader reading where elements of authorship are deemed to be embodied and expressed in derivative versions even if they are not formally noted in registration documents. But the judge doesn't have to certify the appeal before trial if he takes the position that there's nothing extraordinary about his past rulings.
In an effort to avert a trial delay and appeal, the Williams' camp uses a bit of Mark Twain humor to rebut the other side's arguments that to preclude the sound recording would "legalize wholesale copyright infringement."
"Defendants’ dire warnings about the demise of the United States copyright law as a result of this Court’s pretrial rulings are greatly exaggerated," says the newest brief. "Defendants argue that if pre-1978 copyrights are limited to the published compositions that were copyrighted, then anyone can copy compositional material in any pre-1978 sound recordings that was not copyrighted. Defendants are absolutely correct. That is how copyright works."
The lawyers go on to knock the other side's "wild-eyed speculation" about what's contained in the published sheet music of Presley, The Beatles and other artists — noting that it's possible to publish sheet music with stuff like notations on vocal and instrumental parts.
"The Court’s ruling will not 'essentially legalize wholesale copyright infringement of pre-1978 compositions,'" they say. "By definition, all pre-1978 copyrights have already been created. The published works are what they are, and anything that was not published is not copyrighted; that is the law. The Court’s ruling merely follows the law — it does not change the law one iota."
Expect the judge to rule soon on the matter.