Thicke/Pharrell Lose Gaye Appeal

An appeal by Robin Thicke/Pharrell Williams against copyright infringement by their Blurred Lines hit of Marvin Gaye’s Got To Give It Up has just been heard – and decided against them.
In California, The Ninth Circuit Court of Appeals sided [in part] with a lower court by stating that Got to Give It Up was “entitled to broad copyright protection because musical compositions are not confined to a narrow range of expression.”
The court confirmed that Gaye’s estate is entitled to 50% of all royalties from that song forever. It also found that the rapper T.I., who contributed one verse, wasn’t personally liable in the case and is not responsible for damages.

In response, Pharrell, T.I. and Thicke issued a joint statement about the ruling hurting the future of music:
“While we respect the judicial process, we are extremely disappointed in the ruling made today, which sets a horrible precedent for music and creativity going forward. Blurred Lines was created from the heart and minds of Pharrell, Robin and T.I. and not taken from anyone or anywhere else. We are reviewing the decision, considering our options and you will hear more from us soon about this matter.”

Meanwhile, Jan Gaye, Marvin’s ex-wife and the mother of Nona and Frankie Gaye, said:
“This is a wonderful recognition of Marvin’s creativity and the lasting value of one of his greatest songs. Pharrell and Robin should have done the right thing by licensing Marvin’s composition and crediting him. This is a victory for the rights of all musicians.

Experts are not ruling out some sort of renewed appeal, with many pointing to the thoughts of dissenting Judge Jacqueline Nguyen:
“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.”

Michael Keyes is a partner at the international law firm Dorsey & Whitney in its California office and an intellectual property attorney with extensive trial and litigation experience in cases involving trademarks, copyrights, unfair competition and false advertising. He also has a piano performance degree and has written on the issue of music copyright. Of the decision today he says:
“The Court’s decision is noteworthy in a couple of respects. Upholding the jury’s verdict [and the ultimate damage award] could very well mean we see a new wave of additional music infringement lawsuits and claims. The 9th Circuit majority decision was quite explicit in opining that musical works receive broad protection and that “there is no one magical combination of factors that will automatically substantiate a musical infringement suit.” That standard is rather noteworthy and leaves quite a bit of play in the joints for future litigants to cobble together a music infringement claim. In fact, as the dissenting opinion points out, the majority decision seems to give copyright protection to a “musical style” as the two works “differ in melody, harmony, and rhythm.
“One important but rather technical issue that the court did not decide [and that is directly relevant in the Led Zeppelin Stairway To Heaven appeal pending before the 9th Circuit] was whether the “scope” of copyright protection is dictated by the notes on the printed page [the sheet music] or whether the sound recording can be considered as defining the scope of protection. The trial court ruled that the scope of Gaye’s copyright protection was limited to the sheet music because that is what was submitted to the Copyright Office and what was ultimately registered. The 9th Circuit assumed, without deciding the issue, that the trial court made the correct decision. We will need to wait and see how the court deals with this same theme in the Stairway to Heaven case.”