Ninth Circuit Affirms ‘Blurred Lines’ Infringement Verdict in 2-1 Opinion

Recording Studio Microphone: Blurred Lines by Robin Thicke

On March 21, 2018, a federal appeals court upheld a jury’s finding that Robin Thicke’s song “Blurred Lines” infringed on the copyright of Marvin Gaye’s “Got to Give It Up.”

Pharrell Williams, Robin Thicke, and Clifford Harris, Jr.’s song “Blurred Lines” was the world’s best-selling single in 2013. The family of Gaye, who died in 1984, sued Thicke and Pharrell, along with their label, alleging that “Got to Give It Up” was copied without permission.

In March 2015, a jury ruled that the song did infringe upon the copyright of Marvin Gaye’s song. The outcome at the trial level was controversial: instead of Pharrell and Thicke being accused of note-for-note plagiarism, they were accused of infringing on other elements of Marvin Gaye’s “style.”

Later that year, a judge rejected the defendants’ request for a new trial. In August 2016, they formally appealed that ruling. Now, the three-panel Ninth Circuit Court of Appeals has ruled 2-1 in favor of Gaye and his heirs, upholding the earlier, 2015 jury verdict. Many worry that the suit went too far in protecting the elements of a song’s “style” and “feel” and that this will have a chilling effect on creativity.

However, the ruling was mainly concerned with procedural issues.  As Judge Milan D. Smith, Jr. explained, the case was decided on “narrow grounds,” meaning he would not rule against the trial court’s weight of evidence or fact-finding. For example, the defendants sought review of the district court’s order denying their motion for summary judgment, arguing that the district court erred in its application of the extrinsic test for “substantially similarity.” However, on appeal, the Ninth Circuit held that an order denying summary judgment is simply not reviewable after a full trial on the merits. Further, the Ninth Circuit found that the district court did not abuse its discretion in permitting the copyright owners’ expert’s testimony or allowing the expert to play audio “mash-ups” of the two songs.

The appellate court did not express any opinion or resolve the issue of whether Gaye’s copyright was limited to sheet music, as it was previously deemed to be under the 1909 Copyright Act, which ran until the mid-1970s—just after Gaye’s song was written.

Despite being seemingly decided on procedural grounds, the Blurred Lines case will certainly have far-reaching implications for the music world.  In dissent, Judge Jacqueline H. Nguyen warns that this decision “allows the Gayes to accomplish what no one has before: copyright a musical style.”

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