9th Circuit debates “Blurred Lines” verdict

Attorneys for record producer Pharrell Williams and the family of Marvin Gaye seemed to agree on at least one thing Friday: They both think the district judge who handled the so-called "Blurred Lines" case messed up.

Kathleen Sullivan, a Quinn Emanuel Urquhart & Sullivan LLP partner and counsel for defendant-appellant Williams, argued Friday in oral arguments before the 9th U.S. Circuit Court of Appeals that U.S. District Judge John Kronstadt had failed in his responsibility as the court's "gatekeeper."

She said he erred by allowing the plaintiff's expert witnesses to testify to alleged similarities between "Blurred Lines" and Gaye's "Got To Give It Up" that weren't included in Gaye's deposit copy for the song.

He also neglected to grant summary judgment prior to trial in a manner that would prevent opposing counsel from arguing based on unprotected elements not found in the deposit copy, Sullivan said.

Kronstadt erred again in jury instructions, she said, which asked the jury to consider whether Williams or Robin Thicke could have subconsciously copied from the Gaye track. The question failed to clarify that the jury's consideration should be limited to the song's protected elements, Sullivan argued.

As Gaye's family won a $5.3 million verdict for copyright infringement in 2015, it's not surprising that the family's attorney, Arnold Porter Kaye Scholer partner Lisa Blatt, was more reserved in her criticism of the lower court decision.

She argued the judge had been overly restrictive in limiting what elements of Gaye's work were protected. If Kronstadt had allowed the plaintiff to play sound recordings with the unprotected elements of the work removed, Blatt said, the Gaye family's victory could have been more absolute.

Judge Randy Smith summarized Blatt's argument, suggesting that the plaintiffs "agree with the court's ruling, but not for the reason it said."

The panel, comprised of Smith and Judges Jaqueline Nguyen and Mary Murguia, didn't do much to tip its hand about how it might rule.

Most of the judges' questions weren't aimed at poking holes in arguments -- they were more concerned with gathering relevant case law that could inform a ruling. Williams v. Bridgeport Music Inc. et al., 15-56880 (9th Cir.).

Smith praised attorneys on both sides of the appeal and said the panel appreciated that the case was an important one.

Robert Allen, a principal of McKool Smith not involved in the case, said the panel has its work cut out for it, as they won't have much to refer to. There wasn't much relevant caselaw for either side to provide.

"I think they asked a lot of good questions, questions that showed they were sort of struggling with what the right standard should be and what they should do," Allen said.

Allen said a chief deciding factor in the appeal's success would likely be whether the panel finds that the jury considered unprotected elements when making its verdict.

William Hochberg, a partner at Greenberg Glusker Fields Claman & Machtinger LLP not involved in the case, said the fact that the judges seemed so torn on the appeal was a good omen for those hoping for a retrial.

Hochberg said he hopes the district court gets another shot at the case, as it would "remove a lot of the paranoia that many composers have" about accusations of copyright infringement as a result of the ruling.

"I hope that a bright-line replaces the blurred one with a decision that helps guide creative people in the music industry, so they don't have to be paranoid that the music flowing through them might have been inspired by someone else," Hochberg said.