United States: Jury Sees A Clear Line – Pharrell, Thicke Crossed It

Pharrell Williams, famous for singing about how "Happy" he is, might be changing his tune these days. On March 10, a federal jury found him and fellow pop star Robin Thicke liable for copying Marvin Gaye's popular song "Got to Give it Up," resulting in one of the biggest music-infringement verdicts ever – $7.3 million.

Pharrell, known for composing an impressive list of pop hits, scored his biggest hit when he and Robin Thicke teamed up to compose and record "Blurred Lines," which topped the music charts for months in 2013. Thicke repeatedly said that Gaye's "Got to Give It Up" was an "inspiration" when they were composing the 2013 hit. While "Blurred Lines" enjoyed immense success, Marvin Gaye's family members, who own the copyright to "Got to Give It Up," complained that the two songs were a bit too similar. As a result, Pharrell, Thicke, and other "Blurred Lines" rights holders filed a declaratory action in the Central District of California asking the court to rule that their hit did not infringe, as we previously discussed here and here. The Gaye family counterclaimed for infringement.

Things seemed to be going well for Pharrell and Thicke. In the district court's summary judgment opinion, the court ruled that the Gaye family owned rights only to the song's underlying musical composition. The copyright to the sound recording (i.e., Gaye's recorded performance) was owned by Motown and its successor did not assert a claim. Accordingly, in a pretrial ruling, the court excluded the well-known "Got to Give It Up" sound recording as evidence, preventing a jury from hearing a comparison of the two songs as recorded. This was deemed a big "win" for Pharrell and Thicke because the sheet music did not contain any instrumental parts – including the keyboard, bass, and cowbell parts – which were arguably the elements most similar to those in the "Blurred Lines" recording. Even the Gaye family's expert declared that "[t]o limit the composition of 'Got to Give It Up' to its [sheet music] is musically misleading."

At trial, the parties presented clashing expert testimony comparing and contrasting the compositions. Pharrell and Thicke asserted that "Blurred Lines" and "Got to Give It Up" are not substantially similar, and chose not to assert a "fair use" defense. They also argued that any similarities between the songs resulted from elements common to pop songs. Robin Thicke crooned several songs on the stand to demonstrate this point, including songs by the Beatles and Michael Jackson. He also tried to backtrack on his claims about Gaye's specific influence, testifying he was too drunk and high while recording the song. But the contradictory evidence and reliance on "star power" failed to win over the jury.

Even though they could not use the original "Got to Give It Up" sound recording, the Gaye family's experts convinced the jury there were enough similarities to find infringement. The Gaye's family experts also created MIDI files so that the jury could hear these similarities. The jury found both Pharrell and Thicke liable, ordering them to pay about $7.3 million in actual damages and profits.

Many commentators criticize the fact that the jury was not able to analyze the "Got to Give It Up" sound recording. But the ruling was appropriate since the recording contained elements outside the scope of the Gaye family's copyright. Yet, given the verdict, it is worth asking whether Pharrell and Thicke made a strategic misstep by making the request. As a result, the jury was limited to the abstract expert testimony from musicologists and a stripped-down MIDI version of Gaye's song.

In the Ninth Circuit, to find substantial similarity, the jury must find both objective and intrinsic similarity. Often – as here – parties will employ musicologists as experts to testify to objective similarities and differences in the works. Musicologists expound on things like structures, harmonic patterns and rhythms, and melodies. On the other hand, the jury must also find the songs intrinsically similar. This analysis is less obtuse and allows jurors to reflect on their subjective impressions.

It appears that by excluding the sound recording, Pharrell and Thicke inadvertently limited the jury's ability to distinguish the songs' intrinsic differences. One of their primary arguments was that the songs' similarities are attributable to their shared "groove" – which, they argued, does not constitute infringement. Some have speculated that the "Got to Give It Up" stripped down MIDI file could not adequately capture the "groove," and instead highlighted the objective similarities between the songs.

The litigation remains active. On April 2, the court established a post-trial briefing schedule. The Gaye family is seeking to enjoin further sales of "Blurred Lines" and to have the verdict extend to Interscope Records and rapper Clifford Harris, Jr., a.k.a. T.I. Meanwhile, Pharrell and Thicke will seek to have the verdict overturned and/or a new trial. Briefing for both parties' motions will begin May 1 and conclude in late June. Regardless of how the court rules on these post-trial motions, an appeal seems inevitable. As the Pharrell plaintiffs warned, "This case is far from over."

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