9th Circuit affirms ‘Blurred Lines’ ruling

If music attorneys were shocked by a jury verdict finding Pharrell Williams and Robin Thicke had infringed in their song "Blurred Lines," they're nothing short of flabbergasted at a 9th Circuit Court of Appeals panel affirmation of the decision Wednesday.

In a 2015 dispute with the family of Marvin Gaye, the jury held the music duo liable for damages after they found "Blurred Lines" copied elements of the late singer's 1977 song, "Got to Give It Up."

Richard S. Busch, a King & Ballow attorney representing the Gaye family, said in a statement, "We are delighted by the 9th Circuit's decision."

Thicke's and Williams' appeal of the decision was heavy with criticisms of U.S. District Judge John Kronstadt, whom they accused of failing in his role as the trial's "gatekeeper."

Kronstadt denied a summary judgment motion filed by the duo that sought to have the case dismissed on a finding that the song's protectable elements were not substantially similar. He ruled that it was a factual question for the jury to decide.

In a split 2-1 decision, the 9th Circuit panel wrote that its hands were largely tied on procedural grounds.

In an opinion authored by Judge Milan D. Smith and seconded by Judge Mary H. Murguia, the panel wrote that the U.S. Supreme Court has held that parties may not appeal an order denying summary judgment after a full trial.

The panel declined to weigh in on some of the more contentious elements of the case -- most notably, whether evidence presented at trial dealing with aspects of Gaye's song that were not reflected in the deposit copy of the sheet music was permissible.

Though Kronstadt held that only the sheet music for Gaye's song would be admissible, the appellants said he failed to limit testimony from musicologists hired by the Gayes, who referenced similarities between the two songs that went beyond the 1977 song's sheet music.

Lisa Blatt, an Arnold & Porter Kaye Scholer LLP partner who argued for the Gaye family during the appeal hearing, said at the time that the court had in fact been overly restrictive in limiting what elements of Gaye's works were protected.

If Kronstadt had allowed the plaintiff to play the sound recordings at issue with the unprotected elements of the works removed, Blatt said the Gaye family's victory could have been even more convincing.

Lincoln Bandlow, a partner at Fox Rothschild LLP not involved in the case, said the panel's refusal to rule on the permissibility of evidence beyond the sheet music was interesting, considering that issue took up the lion's share of the panel's attention at the appeal hearing.

"They easily spent about 50 percent of the argument talking about that issue, but they punted on it," Bandlow said.

Judge Jacqueline Nguyen blasted the majority's opinion, as it "allows the Gayes to accomplish what no one has before, copyright a musical style."

Nguyen criticized the Gayes' musicologist, who she said "cherrypicked brief snippets to opine that a 'constellation' of individually unprotectable elements in both pieces of music made them substantially similar."

Kenneth Freundlich, a copyright litigator who submitted an amicus brief on behalf of musicologists urging a reversal of the district court decision, noted the case was decided on narrow grounds, "procedurally sidestepping the elephant in the room, which was the court permitting this case to go to the jury based on dueling expert reports."

He praised Nguyen's dissent as "courageous," and said it "tackled the infirmities of the summary judgment ruling" while providing "cogent substantive analysis to support its reversal."

Freundlich highlighted a footnote by Nguyen in which she suggests that the court might appoint its own expert witness in music cases, which he said "is the most significant line in the opinion."

"Copyright defendants in the future would be well-advised, in addition to obtaining their own expert, to move the court to obtain such an expert or risk a trial judge simply punting to the jury when there are two competing and confusing expert positions, as the court did here," Freundlich said.

Smith acknowledged the dissent in the majority's opinion, but said it does "not provide a workable standard for district courts to follow."

"It is unrealistic to expect district courts to possess even a baseline fluency in musicology, much less to conduct an independent musicologist analysis at a level as exacting as the one used by the dissent," Smith wrote.

James Sammataro, a partner at Stroock & Stroock & Lavan LLP not involved in the case, said the panel's ruling "is much more shocking than the jury's verdict." He emphasized a point many music attorneys have argued since the 2015 jury verdict; that if left unchallenged it would chill creativity in the music industry.

"Bad pun intended, it does kind of blur the line between inspiration and infringement," Sammataro said. "It seems overly protective of existing authors at the expense of stimulating creativity."

Robert Jacobs, a partner at Manatt, Phelps, Phillips LLP not involved in the case, said the natural first move for the appellants would be a petition for en banc review.

"The fact that it was a split decision adds some weight to that application. This case gives the circuit an opportunity to clear up some issues in its precedent that I'd love to see cleared up," Jacobs said.

The music duo might feel bolstered to further challenge the decision given their deep pockets and the potential damage to their reputation an adverse ruling could cause, according to Brian Kabateck, a partner at Kabateck Brown Kellner not involved in the case.

"It's not just a substantial monetary judgment; now there's a target on them that they're song stealers," Kabateck said. "Someone's going to look at that and say, 'Gee, let's take a look at their other songs.'"

Howard King, a partner at King, Holmes, Paterno & Soriano LLP who represented the music duo, issued a statement Wednesday praising Nguyen's dissent.

"The thorough and well-reasoned dissenting judge's opinion is compelling and enhances the prospects for success in a further review by the Court of Appeals," King said.

The case is Williams v. Gaye, 2018 DJDAR 2555 (9th Cir. March 21, 2018).