From The Hollywood Reporter:
The $5.3 million punishment against Robin Thicke and Pharrell Williams for infringing Marvin Gaye’s “Got to Give It Up” to create “Blurred Lines” made quite a loud noise throughout the music industry. Since the jury’s 2015 verdict, song theft claims have flourished, and some recording stars like Sam Smith and Ed Sheeran have settled allegations rather than face the music at a trial. On Friday, the “Blurred Lines” creators got an opportunity before the 9th Circuit Court of Appeals to argue why a legal error was made. But those who found the “Blurred Lines” trial result discordant may have to brace themselves for the next verse in this dispute. Not only did the three judges who heard the appeal seem skeptical about overturning the district court’s judgment, but there may be decent chance that Gaye’s family is in line for an even bigger victory.
At the hearing, 9th Circuit judge R. Randy Smith called the “Blurred Lines” appeal an “important” one. Twice. And he let the attorneys argue beyond their time allotments in what’s often a sign that a big decision is coming.
. . . .
Before the mid-1970s, sound recordings weren’t protectable under copyright law. Congress changed that, but given that Gaye’s “Got to Give It Up” was one of the last songs before the legislative change went into effect, his family was forced to litigate the “Blurred Lines” case under a certain disadvantage that no modern music creator would today face. Only protectable elements were given weight — and according to U.S. District Judge John Kronstadt, that meant forgoing any analysis of Gaye’s original “Got to Give It Up” recording. Instead, what’s protectable is whatever was expressed by the sheet music deposited at the U.S. Copyright Office. Jurors never got to hear Gaye’s original song. Instead, each side had musicologists testifying about that sheet music and whether there was any substantial similarity.
The appellants are contending that Judge Kronstadt committed reversible error a few different ways. First, by not sufficiently filtering out unprotectable elements when refusing a summary judgment motion before trial. Second, by allowing the other side’s musicologists to draw inferences beyond what was expressed in the sheet music. And third, by not properly instructing the jury on the need to disregard unprotectable elements like the “groove” on Marvin Gaye’s hit.
Thicke and Williams, though, are now the underdogs.
“This court has never overturned a verdict in a music copyright case and this shouldn’t be the first,” said Lisa Blatt, the Arnold & Porter attorney for the Gayes.
Link to the rest at The Hollywood Reporter
You can be the judge.
Robin Thicke and Pharrell Williams-https://youtu.be/58mNSqq1rTM