Blurred Lines clarified? – no retrial or injunction, damages altered and others jointly liable

Following the controversial jury verdict in February 2015, US District Judge John A. Kronstadt has ruled that there will be no retrial of the claim that the 2013 hit song Blurred Lines copied elements of Marvin’s Gaye’s song Got To Give It Up without permission.¹ But he refused to grant the Gaye family parties an injunction to stop distribution of Blurred Lines. He also reduced the damages awarded for publishing royalties from $4 million to $3.1 million and those against Pharrell Williams for producer royalties from $1.6 million to $350,000.  He awarded the Gaye family a running royalty of 50% of the songwriter and publishing revenue generated by the exploitation of Blurred Lines.  Finally, the judge has made rapper T.I. and the companies that released, manufactured and distributed the track jointly liable for copyright infringement.

Background

Marvin Gaye wrote and recorded Got To Give It Up in 1976.  It was released in 1977 and was a number 1 hit in the same year.  Blurred Lines was written in 2012 by Pharrell Williams, Robin Thicke and rapper T.I. (whose real name is Clifford Harris Jr).  The Interscope parties (i.e. Interscope Records, UMG Recordings Inc, Star Trak Entertainment LLC and Universal Distribution) released, manufactured and distributed the track.  Blurred Lines was a worldwide success, with sales of 14.8 million, and it broke the record for largest radio audience in history.

The case began on 15 August 2013, when Williams’ and Thicke’s lawyers filed an application for a declaration from the court that they had not infringed the copyright in Got To Give It Up, in order to protect their clients against infringement claims that allegedly had been made privately by the Gaye family.  Harris was included in this application for a declaration, as a co-author of Blurred Lines, as were the Interscope parties.  Gaye’s music publisher, Bridgeport Music Inc, and three of Marvin Gaye’s children countersued, alleging that Blurred Lines copied the bass line of Gaye’s Got To Give It Up and copied the “defining funk” of its cowbell accents.

On 10 March 2015, a jury found that the copyright of Got To Give It Up had been infringed by Thicke and Williams in Blurred Lines, but that they had not done so wilfully.  The third writer, Harris, was not found to be liable, nor were the Interscope parties.

On 1 May 2015, Williams’ and Thicke’s lawyers filed a motion requesting a retrial and an order lowering the amount of damages granted by the jury.  On the same date, the Gaye parties filed motions for a declaration that Harris and the Interscope parties were also liable for copyright infringement, for an injunction to stop distribution of Blurred Lines and for prejudgment interest.

Decision

In their motion for a retrial, Williams and Thicke contended that errors occurred in expert evidence by the Gaye family’s musicologist, in the admission of “lay opinions” and in the directions given by the judge to the jury.  But in the judge’s view, Williams and Thicke had not demonstrated that the verdict was against the clear weight of the evidence.  He considered that the jury’s decision was supported by substantial evidence.  So no retrial was warranted.

The judge considered that if the amount of damages awarded by a jury is excessive it is the duty of the trial judge to require that they are lowered or that there is a retrial.  The judge then examined the evidence and found that there was substantial force to the argument that the award made by the jury in this case exceeded the amount that was supported by evidence, since the jury had not found wilful infringement had taken place.  The jury had, however, relied on a figure of 50% of $8 million, which had been provided to them in error by the Gaye parties’ counsel, as this figure reflected approximate publishing royalties.  The damages award was therefore reduced from $4 million to $3.1 million.  The judge also found that the calculation of producer royalties paid to Williams had been made in error, and so the award to the Gaye parties was reduced from $1.6 million to $350,000.

The judge then considered the Gaye parties’ motion for declaratory relief that Williams and Thicke were liable for copyright infringement, and that Harris and the Interscope parties were liable for copyright infringement.  The judge decided that the jury had found on a preponderance of the evidence that Williams and Thicke were liable for copyright infringement and so such a declaration was warranted.  The Gaye parties contended that the verdict was legally inconsistent not to find Harris and the Interscope parties similarly liable, and that this was the result of an error in instructions to the jury.  Harris and the Interscope parties argued that the verdict could not be changed without infringing their respective Seventh Amendment rights to a jury trial.  The judge found that it was due to an error in instructions to the jury that Harris and the Interscope parties had not been found jointly liable for copyright infringement with Williams and Thicke, and so a court declaration was granted.  Harris and the Interscope parties were therefore deemed liable for any prospective infringement of Got to Give it Up in Blurred Lines.

The judge was not, however, inclined to grant a permanent injunction against the exploitation of Blurred Lines.  He agreed that the Gaye parties had provided sufficient evidence to show that future infringement was likely, but he considered that such damage was not “irreparable” as it was solely economic and could be remedied by damages.  He also considered that a running royalty was a feasible remedy in the circumstances and an alternative to a permanent injunction, rather than ongoing litigation to recover sums until the copyright expired in 2072.  He awarded the Gaye family a running royalty of 50% of songwriter and publishing revenue, to run from the date on which the judgment was entered, rather than from the date of the jury verdict.  The judge also awarded the Gaye parties prejudgment interest on their awards from the date of the jury’s verdict until the date on which the judgment was entered.

Comment

This pragmatic decision serves to iron out some of the inconsistencies in the jury verdict and arrives at a more logical conclusion.  It does not, however, provide a reasoned judicial view of the law in relation to copyright on these issues.  So the jury verdict may still be used by parties in the future to support arguments that influence effectively amounts to infringement.

Following the decision, Howard King, the lawyer representing Williams, Thicke and Harris, stated that his clients “independently created every note and lyric of Blurred Lines”, and commented that: “We look forward to ultimately obtaining appellate confirmation that no one can own a genre or a groove and that composers can be free to be inspired by the works of those creators that came before them.  We look forward to exercising our further remedies and ultimately achieving clarity on the difference between inspiration and copyright infringement.”  The Gaye parties’ lawyer reported that they were reviewing the ruling and would discuss options for how the reduction of damages in the verdict would be handled.  With Mr King and his clients apparently determined to appeal this judgment, this dispute looks to set to continue, and an appellate ruling might provide a more informative precedent.

Gillie Abbotts, Associate, Michael Simkins LLP

Article written for Entertainment Law Review.

[1] Pharrell Williams, Robin Thicke and Clifford Harris, JR. v Bridgeport Music, Inc, Frankie Christian Gaye, Marvin Gaye III, Nona Marvisa Gaye, CASE NO. CV13-06004-JAK (AGRx) Hon. John A. Kronstadt, 14 July 2015.