No. 15-56880 (9th Cir. July 11, 2018)
“Got to Give it Up”
George Clinton, et al.
Robin Thicke, et al.
Comments by Charles Cronin
March 22nd 2018 the Ninth Circuit released its predictably regrettable opinion in which a majority of the panel of three judges upheld the District Court’s judgment, which was based on a jury’s verdict, that Robin Thicke and Pharrell Williams were liable for copyright infringement. The majority opinion implies a tacit realization on the part of the authors that the lower court jury verdict was a travesty. But, in an affected endorsement of the integrity of jury determinations, the majority rolls out an array of legal procedural obstacles to overruling the verdict and the lower court that accommodated it, along with flimsy bromides like “music is not confined to a narrow range of expression” to justify its deference to them.
In her trenchant dissent, Judge Jacqueline Nguyen (apparently the only musically literate member of the panel) eviscerates the Gaye’s expert testimony of musical similarities. She correctly concludes that the obvious lack of similarities should have prompted the trial court to grant Thicke’s motion for summary judgment. (Doing so would have ended the dispute, preventing it from metastasizing as it did into a disgraceful bid to win the sympathy of musically illiterate jurors by using irrelevant derogations about the personalities of the parties.) Moreover, says Judge Nguyen, even if the dispute were allowed to be tried, the same absence of similarities between the songs should have prompted the court to render a judgment in favor of Thicke as a matter of law because Gaye’s claim could not survive the initial extrinsic test for similarity.
Judge Nguyen wraps up with a stinging fillip: “The Gayes, no doubt, are pleased by this outcome. They shouldn’t be. They own copyrights in many musical works, each of which (including “Got to Give It Up”) now potentially infringes the copyright of any famous song that preceded it.” The majority devotes nine pages of its opinion to rebutting Judge Nguyen’s arguments. It claims that Judge Nguyen’s conjectures about the inhibiting consequences of its extending copyright in musical works to cover stylistic elements are “unfounded hyperbole”.
In footnote 27 the majority gives a confused and confusing justification for this response based on the fact that “[u]nlike the 1909 Act, the current copyright regime…. protects ‘works of authorship’ fixed in ‘sound recordings’.” But the fact that it is now possible to obtain copyright for the recording of a particular performance of a musical work doesn’t change the quantum of the separately protected expression in the musical work. And, even if the majority confusedly alludes to the fact that the current copyright statute permits the registration of musical works that are fixed in an audible formats, only the original and quantifiable musical expression that can be extracted from the audio recording of a performance is protectable as the underlying musical work. Elements like regional accents, volume, articulation, instrumentation, and stylistic attributes of particular performers (regardless whether they are also the authors of the works being performed) – captured in sound recordings are independently copyrightable, but the protection only extends to that particular recording of the performance, and not the stylistic elements themselves.
¶ On 6 October 2017 the Ninth Circuit in Pasadena held oral arguments in Pharrell Williams and Robin Thicke’s appeal to vacate the district court determination that they infringed Marvin Gaye’s “Got to Give it Up” in their song “Blurred Lines”. The Ninth Circuit has posted a complete A/V recording of the session on YouTube:
Perhaps the most intelligent and incisive encapsulation of the dispute occurred in the exchange between Judge Jacqueline Nguyen and Kathleen Sullivan, who represented Williams and Thicke (~56:00 in the recording). At this point they wonder whether allowing jurors in music copyright infringement disputes to hear recordings of the songs at issue would introduce unprotectable elements associated with performances, rather than the underlying musical works, thereby confusing them and compromising their evaluation of musical similarity.
¶ In March 2017 the University of Colorado Law School and the University’s Silicon Flatirons Organization held a conference “Blurred v. Bright: The Changing Analysis of Copyright Infringement in Music.” A video recording of the conference presentations and discussions is available here. Some of the presentations will be published as articles in the Colorado Technology Law Journal. Here is a link to a draft of Charles Cronin’s Seeing is Believing: The Ongoing Significance of Symbolic Representations of Musical Works in Copyright Infringement Disputes.
¶ Several amicus briefs have been filed in connection with the appeal pending at the Ninth Circuit in which Robin Thicke, Pharrell Williams, et al. seek to overturn the jury verdict and monetary judgment against them in the district court case involving “Blurred Lines”. All three briefs support the appellants’ position, indicating not only broad concern about the deleterious potential of the jury verdict on innovation in the area of popular music, but also the widely shared view that the jury’s verdict was based on personal antipathy towards the appellants, and flawed testimony of the Gaye family’s musical experts that the trial judge should not have allowed the jury to consider.
• Amicus brief submitted on behalf of Musicologists by Los Angeles attorney Kenneth Freundlich: PDF
• Amicus brief submitted by Public Knowledge, a Washington based public interest group: PDF
• Amicus brief submitted on behalf of Songwriters & Producers by Los Angeles attorney Edwin McPherson: PDF
• Amicus brief submitted on behalf of the Institute for Intellectual Property and Social Justice, Rockville, Maryland: PDF
• Amicus brief submitted on behalf of Musicologists/Ethnomusicologists by Detroit & Little Rock attorneys Howard Abrams and Bernard Burk: PDF
In their counterclaim to Pharrell William’s complaint for declaratory relief, defendants Frankie Gaye, et al. attempt to head off the obvious fact that the disputed works are merely stylistically similar, by claiming that “[t]he substantial similarities [in both] are the result of many of the same deliberate creative choices made by their respective composers.” Adding a bit of impressive quantitative hot air: “Many of the main vocal and instrumental themes of ‘Blurred Lines’ are rooted in [what does that mean?] “Got to Give it Up”; namely, the signature phrase, vocal hook, backup vocal hook, their variations, and the keyboard and bass lines.” But clinching the matter is the assertion that both songs “…shared departures from convention [what convention?] such as the unusual cowbell instrumentation [!], omission of guitar, and use of male falsetto.”
The claimants’ (Gaye’s heirs) error – an increasingly common one fostered by opportunistic attorneys seeking payoffs by harassing financially successful pop stars – lies in the fact that Gaye’s number, its “signature phrase, vocal hook, backup…” contains virtually no copyrightable expression to begin with. The notated rendering of Gaye’s song that was used as the copyright registration deposit copy (see PDF file above) was obviously created not by Marvin Gaye, but by a literate musician who transcribed the sounds of Gaye’s recorded performance of “Got to Give it Up.” The result is a tortuous document that attempts to render an essentially improvised work of sound using the straitjacket of symbolic music notation (note the extravagant number of tied notes used to try to wrest some semblance of musical meaning out of Gaye’s free-form vocal line). The fact that people associate a certain sound or style with Marvin Gaye doesn’t indicate that that sound or style is his copyrighted expression; it simply means that his use of it was broadly disseminated among the public (like Jackie Kennedy’s hair flip from the 1960s that countless women and drag queens have imitated without allegations of infringement for decades).
What to make of the complaint for declaratory relief, and the plaintiffs’ opening remarks about their “utmost respect for and admiration of Marvin Gaye, Funkadelic and their musical legacies…”? The only reason for such a gratuitous statement would appear to be the fact that Marvin Gaye was black, and Robin Thicke, the featured performer in “Blurred Lines,” is white. Because Thicke’s financial success hinges significantly upon his seeming rapport with black rappers, it is essential that the public perception of such a rapport not be compromised by any suggestion that the performer is a carpetbagger.
Thicke’s popularity among whites – particularly the economic jackpot of young white men – depends upon his handlers’ cultivated selling of him as being assimilated into black male culture – demonstrating the misogyny, satyriasis, and criminality that many white men project onto their black counterparts, which provide the likes of Thicke, Justin Timberlake, and Justin Bieber a bogus aura of street cred that flatters their gullible middle class white audiences while simultaneously perpetuating offensive stereotypes of black men.
In March 2015 a jury in a district court in Los Angeles determined that Robin Thicke and Pharrell Williams had infringed Gaye’s work, and awarded Gaye’s heirs $7.4 million. Judge John Kronstadt’s reluctance to discard the jury verdict is an embarrassment to his court and legacy. Preposterous outcomes like this justify Europeans’ skepticism towards U.S.’s law provision of a right to a jury trial in such disputes. There is no legal or factual justification for the verdict; the jurors simply subscribed to the Gayes’ attorney’s portrayal of Thicke and Williams as drug-addled liars. Thicke’s documented “pharmaceutical heroics”* (likely phony, but intended to burnish a raffish image) and images of naked women dancing around Williams and Thicke on the video by which the song was marketed undoubtedly alienated jurors confronting Gaye’s heirs — aggrieved women, in funereal garb. Had Marvin Gaye himself (“pharmaceutical heroics” – genuine!) been the claimant in this dispute this indefensible verdict would have been far less likely.
On 1 May 2015 Williams et al. filed a motion (PDF file above) seeking the court to discard the jury’s verdict, accurately describing it as”unfounded, illogical, and a miscarriage of justice.” The Motion deals at length with the testimony of the Gaye’s musical expert, Judith Finell (PDF file above of transcript of Finell deposition) that plaintiffs claim was based on a comparison of the sound recordings of the works, and not the rudimentary primary musical information they contain as revealed in the graphical representations of the works. As the court recognized, the Gayes’ property interest in “Got to Give it Up” is limited to this minimal musical information.
In their third brief on appeal (April 2017, linked above) Williams et al. argue that the district court’s denial of their request for summary judgment was legally erroneous because it was based upon impermissible evidence relating to unprotected stylistic aspects of Gaye’s song.
* Borrowed from Robert Pattison’s brilliant The Triumph of Vulgarity: Rock Music in the Mirror of Romanticism, 1987,
Pavel Karnaukhov, a musician and software developer in Kiev, has developed an app, known as Melody Composer Squared, that creates graphical representations of melodic lines. Linked here are visualizations of the two melodies at issue in this dispute: “Got to Give it Up”;“Blurred Lines”.
Plaintiffs’ Complaint for Declaratory Relief: pdf copy
Defendants’ Counterclaim: pdf copy
Copyright Registration for “Got to Give it Up” pdf copy
Plaintiffs’ Motion to Exclude Gaye’s sound recording pdf copy
Transcript of videotaped deposition of Gayes’ music expert Judith Finell pdf copy
Defendants’ Motion for Prejudgment Interest pdf copy
Plaintiffs’ Motion for Judgment as a Matter of Law pdf copy
Third appeal brief of Pharrell Williams, et al. (April 2017) pdf copy
9th Circuit Order & Amended Opinion (July, 2018) pdf copy