The ‘Blurred Lines’ Appeal Failed — Now What?

What are the implications of Wednesday’s ruling for Robin Thicke, Pharrell Williams and the rest of the music industry?

With the Ninth Circuit Court of Appeals’ ruling on Wednesday to uphold a 2015 verdict finding Robin Thicke and Pharrell Williams’ hit “Blurred Lines” infringed the copyright to Marvin Gaye’s “Got to Give It Up,” many in the music industry are concerned about the potential consequences.
The split 2-1 decision upheld a district court jury decision that determined that Thicke and Williams were liable for over $5 million in damages to Gaye’s estate. But as Judge Milan D. Smith, Jr. explained in his ruling, the case was decided on “narrow grounds,” meaning he would not rule against the original trial’s weight of evidence or fact-finding. In effect, by declining to disturb the original jury decision, the majority judges ruled on very little in a case of great substance — despite what many might have hoped.
Among the matters from the 2015 suit left untouched, the appellate court did not make any decision to 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 as law until the mid-1970s — just after Gaye’s song was written — when sound recordings were added to its protections. Since the appellate court accepted the result without deciding on the district court’s ruling of scope, Wednesday’s decision does not set any new precedent that could affect later trials — such as Spirit’s lawsuit against Led Zeppelin’s “Stairway to Heaven,” which is currently facing appeal.

The appellate majority also found that the lower district court’s order denying summary judgment was not reviewable following a full trial on the case’s merits. In Smith’s opinion, he also disagreed with Thicke and Williams’ claim that there are insufficient similarities between the songs to warrant the ruling against them and thus “the verdict is against the clear weight of the evidence.” Instead, Smith again opted to side with the jury’s findings vis-à-vis the process that led to them. He said Thicke and Williams faced “significant, if not insurmountable, hurdles” to prove that there was insubstantial evidence proving potentially infringing similarities between the songs, ruling that the majority judges would not second-guess the jury’s decision based on the testimonies provided by the Gayes’ experts.
Similarly, the Ninth Circuit found that the district court did not abuse its discretion in denying a new trial, despite Thicke and Williams’ arguments otherwise — specifically regarding claims of their access to Gaye’s song, allegedly erroneous instruction for the jury to consider unprotectable elements of the songs, and more.
Through all of this, the majority judges essentially declined to weigh in on the case either way — instead only ruling based on the procedure by which it was conducted. Meanwhile, in Judge Jacqueline Nguyen‘s dissent, she vehemently objected to the 2015 jury verdict’s merits, stating that the songs are “not objectively similar” and “different in melody, harmony and rhythm,” claiming the decision “strikes a devastating blow to future musicians.”
“The majority allows the Gayes to accomplish what no one has before: copyright a musical style,” she wrote. “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… That is the consequence of the majority’s uncritical deference to music experts.”

So, what now? Attorney James Sammataro of Stroock & Stroock & Lavan LLP, who was not involved in the case, notes that typically in appeals court “great deference” is supposed to be given to a jury verdict and the district court as to what is allowed to be admissible. However, he says he is still surprised by the ruling, adding that it seems like the majority judges “purposely drove into a procedural roadblock because they didn’t want to deal with the issue.
“Given this this isn’t your run of the mill case, given the fact that there are lasting consequences and that this will really reverberate throughout the industry — and we’ve already seen an incredible spike of copyright infringement actions in the years since this jury verdict — it would’ve been nice of them to find a way to really dive into the merits,” Sammataro continues. “It just feels like we nibbled on the boundaries and didn’t get in any way to the core of the issues. Like we bit the crust, but we didn’t get to the white part of the bread.”
Sammataro says he, along with most copyright lawyers and members of the music industry, had been “counting the days when this jury verdict would be reversed.” So, with the appellate ruling, there is surprise and disappointment — not just that the jury’s standing decision was upheld, but also how it was upheld.
“I think we all realize that once something gets into the realm of a jury that they could misapply the law, that they may not understand the nuance between substantial similarity, objective similarity and what was required,” he says. “The analysis that most people wanted to see was a kind of granular comparison of the two works… For that not to be done, but for in the dissent, was really kind of disappointing.”
Another music industry attorney, J. Michael Keyes of firm Dorsey & Whitney LLP, agrees. Keyes says he believes that while “Blurred Lines” and “Got to Give It Up” do sound alike, “there wasn’t substantial similarity between the musical elements of the two.” The original jury verdict, along with the appellate majority’s decision not to overturn it, highlights a key issue in music copyright cases and something courts sometimes do get wrong, he says. “Are you protecting an author’s particular act of expression or are you protecting a particular style of composition? It can be difficult to draw that line.”

But Lisa Alter of Alter, Kendrick & Baron LLP says some might be inclined to blow the implications of Wednesday’s ruling out of proportion. Alter asserts that the merits of the 2015 trial should not be dismissed just because some believe it could negatively affect creative expression.
“People are concerned in general big picture,” she says, “and the question is, what does this mean for other creators who might be limited in their creative processes by virtue of having their work subjected to undue scrutiny for possible infringement? I think that concern is unfounded. I think that in both the lower court and on appeal they discussed actually quite a stringent process that goes on in determining if an infringement has occurred.”
Since the majority opted to review the case on such narrow grounds with a focus on the legal process, Zachary Elsea of Kinsella Weitzman Iser Kump & Aldisert LLP says Wednesday’s decision likely will not set any further precedent for copyright law beyond the 2015 verdict. Referencing Smith’s opinion, Elsea notes this as a reprimand to Thicke’s and Williams’ legal teams not filing a motion for judgment as a matter of law that would have taken the case “out of the hands of the jury.” And, because of this, the Ninth Circuit Court of Appeals could only look at whether there was a total absence of evidence for the jury to make its finding.
As Judge Smith wrote, “Far from heralding the end of musical creativity as we know it, our decision, even construed broadly, reads more accurately as a cautionary tale for future trial counsel wishing to maximize their odds of success.”
Meanwhile, the dissent from Judge Nguyen argued that this case should have been decided on summary judgment and that Thicke and Williams were still entitled to judgment as a matter of law. Nguyen noted that there were no material factual disputes at the original trial and that Thicke and Williams never contested the existence of the songs’ similarities, rather that these similarities are not protected by copyright law. This is an argument that the majority failed to engage and Nguyen argues against Smith’s claim that the jury has to be the decider because there was no judgment as a matter of law, stating the summary judgment should be reviewed and the court should have discretion to take a fresh look at the case’s merits.

“Big picture, I don’t think it’s a major change in the law,” Elsea says. “However, I think that any impact that the jury verdict had when it came down in 2015 in making artists more cautious to use a groove or a feel, as they quoted at trial, of a song will remain.” Still, Elsea says he expects this case to be cited in future lawsuits by plaintiffs seeking a jury decision, noting one of the key disagreements between the majority and dissenting opinions was who should be the decider in a copyright infringement case such as this.
Looking ahead, Thicke and Williams do still have options for further appeal. They could petition for en banc review, which would request that the entire Ninth Circuit Court of Appeals look at the issues, or petition for the U.S. Supreme Court to step in and decide the case. (The last time a music copyright case was considered by the Supreme Court was in 1994, when 2 Live Crew’s “Pretty Woman” qualified for fair use as a parody of Roy Orbison’s “Oh, Pretty Woman.”) But Keyes says neither of those options are very likely.
“Getting the Supreme Court to weigh in on any case, your odds are always very small because the court takes so few cases,” he says. “Same with en banc reviews. The Ninth Circuit — as is the case, I understand, with most federal courts of appeal — rarely accepts a case for en banc review… So, for all intents and purposes, this is probably the end of the line.”