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Oh boy. We had hoped that the 9th Circuit might bring some sanity back to the music copyright world by overturning the awful "Blurred Lines" ruling that has already created a massive chilling effect among musicians… but no such luck. In a ruling released earlier this morning, the 9th Circuit largely affirmed the lower court ruling that said that Pharrell and Robin Thicke infringed on Marvin Gaye’s copyright by writing a song, "Blurred Lines," that was clearly inspired by Gaye’s "Got To Give It Up."
No one has denied that the songs had similar "feels" but "feeling" is not copyrightable subject matter. The compositions of the two songs were clearly different, and the similarity in feel was, quite obviously, paying homage to the earlier work, rather than "copying" it. For what it’s worth, there appears to be at least some hesitation on the part of the majority ruling, recognizing that this ruling could create a huge mess in the music world, so it tries (and mostly fails) to insist that this ruling is on narrow grounds, specific to this case (and much of it on procedural reasons, which is a kind way of suggesting that the lawyers for Pharrell and Thicke fucked up royally). As the court summarizes:
We have decided this case on narrow grounds. Our conclusions turn on the procedural posture of the case, which requires us to review the relevant issues under deferential standards of review.
Throughout the majority ruling, you see things like the following:
We are bound by the “‘limited nature of our appellate function’ in reviewing the district court’s denial of a motion for a new trial.” Lam, 869 F.3d at 1084 (quoting Kode, 596 F.3d at 612). So long as “there was some ‘reasonable basis’ for the jury’s verdict,” we will not reverse the district court’s denial of a motion for a new trial. Id. (quoting Molski, 481 F.3d at 729). “[W]here the basis of a Rule 59 ruling is that the verdict is not against the weight of the evidence, the district court’s denial of a Rule 59 motion is virtually unassailable.” Id. (quoting Kode, 596 F.3d at 612). When that is the case, we reverse “only when there is an absolute absence of evidence to support the jury’s verdict.” Id. (quoting Kode, 596 F.3d at 612). “It is not the courts’ place to substitute our evaluations for those of the jurors.” Union Oil Co. of Cal. v. Terrible Herbst, Inc., 331 F.3d 735, 743 (9th Cir. 2003). Of note, we are “reluctant to reverse jury verdicts in music cases” on appeal, “[g]iven the difficulty of proving access and substantial similarity.”
17 Three Boys Music, 212 F.3d at 481.
The Thicke Parties face significant, if not unsurmountable, hurdles. First, we are generally reluctant to disturb the trier of fact’s findings, and have made clear that “[w]e will not second-guess the jury’s application of the intrinsic test.” Id. at 485. Second, our review is necessarily deferential where, as here, the district court, in denying the Rule 59 motion, concluded that the verdict was not against the clear weight of the evidence. Finell testified that nearly every bar of “Blurred Lines” contains an area of similarity to “Got To Give It Up.” Even setting aside the three elements that trouble the Thicke Parties (“Theme X,” the bass line, and the keyboard parts), Finell and Dr. Monson testified to multiple other areas of extrinsic similarity, including the songs’ signature phrases, hooks, bass melodies, word painting, the placement of the rap and “parlando” sections, and structural similarities on a sectional and phrasing level. Thus, we cannot say that there was an absolute absence of evidence supporting the jury’s verdict.
That’s just one example of many where the court more or less says "our hands are tied to review the jury’s decision."
The whole thing is a mess, though, and is going to create lots of problems. And, honestly, I don’t think I can do a better job than the one dissenting judge, Judge Jacqueline Nguyen, who seems to fully understand the issues at play and what a disaster this ruling is.
The majority allows the Gayes to accomplish what no one has before: copyright a musical style. “Blurred Lines” and “Got to Give It Up” are not objectively similar. They differ in melody, harmony, and rhythm. Yet by refusing to compare the two works, the majority establishes a dangerous precedent that strikes a devastating blow to future musicians and composers everywhere.
Judge Nguyen isn’t pulling any punches.
The majority, like the district court, presents this case as a battle of the experts in which the jury simply credited one expert’s factual assertions over another’s. To the contrary, there were no material factual disputes at trial. Finell testified about certain similarities between the deposit copy of the “Got to Give It Up” lead sheet and “Blurred Lines.” Pharrell Williams and Robin Thicke don’t contest the existence of these similarities. Rather, they argue that these similarities are insufficient to support a finding of substantial similarity as a matter of law. The majority fails to engage with this argument.
Finell identified a few superficial similarities at the “cell” level by focusing on individual musical elements, such as rhythm or pitch, entirely out of context. Most of these “short . . . pattern[s]” weren’t themselves protectable by copyright, and Finell ignored both the other elements with which they appeared and their overall placement in each of the songs. Her analysis is the equivalent of finding substantial similarity between two pointillist paintings because both have a few flecks of similarly colored paint. A comparison of the deposit copy of “Got to Give it Up” and “Blurred Lines” under the extrinsic test leads to only one conclusion. Williams and Thicke were entitled to judgment as a matter of law.
Also, I’m glad to see a judge recognize this point (even if it’s in a dissent) that many in the legacy copyright industries deny (even though it’s actually to their benefit):
The purpose of copyright law is to ensure a robust public domain of creative works…. While the Constitution authorizes Congress to grant authors monopoly privileges on the commercial exploitation of their output, see U.S. Const. art. I, § 8, cl. 8, this “special reward” is primarily designed to motivate authors’ creative activity and thereby “allow the public access to the products of their genius.”… Accordingly, copyrights are limited in both time and scope. See U.S. Const. art. I, § 8, cl. 8 (providing copyright protection only “for limited Times”); Sony Corp., 464 U.S. at 432 (“This protection has never accorded the copyright owner complete control over all possible uses of his work.”); see also Berlin v. E.C. Publ’ns, Inc., 329 F.2d 541, 544 (2d Cir. 1964) (“[C]ourts in passing upon particular claims of infringement must occasionally subordinate the copyright holder’s interest in a maximum financial return to the greater public interest in the development of art, science and industry.”).
Judge Nguyen also points out a key point that you would hope that any judge hearing a copyright case would actually understand: copyright only covers the actual author’s expression (and only the new and unique parts of it — and only in limited ways). But that’s not what the ruling in this case says:
An important limitation on copyright protection is that it covers only an author’s expression—as opposed to the idea underlying that expression…. Copyright “encourages others to build freely upon the ideas and information conveyed by a work.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349–50 (1991) (citing Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556–57 (1985))….
Such accommodations are necessary because “in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994) (quoting Emerson v. Davies, 8 F. Cas. 615, 619 (C.C.D. Mass. 1845) (Story, J.)). Every work of art “borrows, and must necessarily borrow, and use much which was well known and used before.” Id. (quoting Emerson, 8 F. Cas. at 619); see 1 Melville D. Nimmer & David Nimmer, Nimmer on Copyright § 2.05[B] (rev. ed. 2017) (“In the field of popular songs, many, if not most, compositions bear some similarity to prior songs.”). But for the freedom to borrow others’ ideas and express them in new ways, artists would simply cease producing new works—to society’s great detriment.
And while the dissent points out that two songs may share the same "groove," that’s not nearly enough for it to be copyright infringement.
“Blurred Lines” clearly shares the same “groove” or musical genre as “Got to Give It Up,” which everyone agrees is an unprotectable idea. See, e.g., 2 William F. Patry, Patry on Copyright § 4:14 (2017) (“[T]here is no protection for a communal style . . . .”). But what the majority overlooks is that two works in the same genre must share at least some protectable expression in order to run afoul of copyright law.
And, incredibly, as Judge Nguyen points out, the majority fails to even attempt to say what copyrightable expression was duplicated in Blurred Lines:
The majority doesn’t explain what elements are protectable in “Got to Give It Up,” which is surprising given that our review of this issue is de novo. See Mattel, Inc. v. MGA Entm’t, Inc., 616 F.3d 904, 914 (9th Cir. 2010). But by affirming the jury’s verdict, the majority implicitly draws the line between protectable and unprotectable expression “so broadly that future authors, composers and artists will find a diminished store of ideas on which to build their works.” Oravec v. Sunny Isles Luxury Ventures, L.C., 527 F.3d 1218, 1225 (11th Cir. 2008) (quoting Meade v. United States, 27 Fed. Cl. 367, 372 (Fed. Cl. 1992)).
Worse still, the majority invokes the oft-criticized “inverse ratio” rule to suggest that the Gayes faced a fairly low bar in showing substantial similarity just because Williams and Thicke conceded access to “Got to Give It Up.”… The issue, however, isn’t whether Williams and Thicke copied “Got to Give It Up”—there’s plenty of evidence they were attempting to evoke Marvin Gaye’s style. Rather, the issue is whether they took too much.
Copying in and of itself “is not conclusive of infringement. Some copying is permitted.” … Copying will only have legal consequences if it “has been done to an unfair extent.” … In determining liability for copyright infringement, the critical and ultimate inquiry is whether “the copying is substantial.” Id.
And of course, what has been "copied" to create the "groove" is not subject to copyright protection. Which you would think would be important in court. But the majority didn’t bother.
The Gayes don’t contend that every aspect of “Blurred Lines” infringes “Got to Give It Up.” Rather, they identify only a few features that are present in both works. These features, however, aren’t individually protectable. And when considered in the works as a whole, these similarities aren’t even perceptible, let alone substantial.
Judge Nguyen then goes through, in fairly great detail, to explain (including with sheet music examples) why the copyright-protectable elements of the composition have not been copied here. This is the kind of analysis that should have been done before, and should have happened at the lower court. But it did not.
Judge Nguyen then points out that ruling this way on narrow procedural grounds is also nonsense.
The majority insists that the verdict is supported by the evidence but tellingly refuses to explain what that evidence is. Instead, it defends its decision by arguing that a contrary result is impossible due to Williams and Thicke’s purported procedural missteps…. While the procedural mechanism for granting relief is beside the point given the majority’s holding, there’s no such obstacle here.
I agree that we normally are not at liberty to review the district court’s denial of summary judgment after a full trial on the merits…. This rule makes eminent sense. Once a trial has concluded, any issues relating to the merits of the parties’ dispute “should be determined by the trial record, not the pleadings nor the summary judgment record.” … However, there is little difference between reviewing a summary judgment ruling and a jury verdict other than the source of the factual record… and here there are no material factual disputes. A completed trial does not prevent us from reviewing the denial of summary judgment “where the district court made an error of law that, if not made, would have required the district court to grant the motion.”
Nguyen really hits back on the majority for suggesting that this is just a dispute between competing experts over what was similar and what was not. As she rightly points out, that’s a question that comes up only after you’ve shown that the elements being copied are actually copyrightable subject matter. And the lower court totally failed to do that, meaning this is an issue of law, not one of disputed facts. The law says these elements aren’t protected. And that’s important, but the court ignored it entirely.
No one disputes that the two works share certain melodic snippets and other compositional elements that Finell identified. The only dispute regarding these similarities is their legal import—are the elements protectable, and are the similarities substantial enough to support liability for infringement? …
By characterizing these questions as a factual dispute among experts, the majority lays bare its misconception about the purpose of expert testimony in music infringement cases. As with any expert witness, a musicologist can’t opine on legal conclusions, including the ultimate question here—substantial similarity…. Her role is to identify similarities between the two works, describe their nature, and explain whether they are “quantitatively or qualitatively significant in relation to the composition as a whole,”…. The value of such testimony is to assist jurors who are unfamiliar with musical notation in comparing two pieces of sheet music for extrinsic similarity in the same way that they would compare two textual works.
In other words, the lower court, and the majority, both got so caught up in the Gayes’ "expert" talking about the similarities of "the groove" that they forgot to even bother to check if a "groove" is copyrightable.
Finally, Nguyen points out that this disaster is going to haunt lots of people — likely including the Gaye Estate, given how much of Gaye’s own work was built on those who came before him:
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.
Be careful what you wish for. You just might get it. And then get sued on the same grounds. It seems quite likely that we’ll now see a flood of similar lawsuits (some have started already, but this will open the floodgates).
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