Oral Appellate Arguments in 'Blurred Lines' Copyright Case

Circuit Judge Jacqueline Nguyen picked up that theme at one point, telling Blatt that “every single artistic creation is inspired by prior works.”

But Blatt — and the court — spent much more time debating a threshold issue: whether Central District of California federal Judge John A. Kronstadt properly limited the basis for infringement to sheet music Gaye's publishers deposited with the Copyright Office. Blatt argued that jurors should have been allowed to consider the actual recording of “Got to Give It Up.” “The theme of this case is that both hands were tied behind the Marvin Gaye heirs' backs, they were blindfolded and handcuffed, and still won the trial,” Blatt said.

“Blurred Lines” became an international hit in 2013. Thicke, Williams and rapper T.I. are credited as co-authors. In an interview with GQ magazine, Thicke had recalled telling Williams that “Got to Give It Up” was one of his favorite songs of all time and that “we should make something like that, something with that groove.” The two started playing and “we literally wrote the song in about a half hour and recorded it.” See, http://bit.ly/2gntpmg.

Gaye's heirs sued for infringement a few months later. In his deposition Thicke said he had told lies in the GQ interview and others like it “to help sell records.”

The Los Angeles federal court jury awarded about $7.3 million, which District Judge Kronstadt reduced to just over $5 million, plus a 50% running royalty.

Sullivan argued during her oral appellate argument that the magazine articles never should have come into evidence. Blatt replied that they were admissible to prove willfulness and as impeachment evidence.

The Ninth Circuit judges seemed more dialed in on the exclusion of Gaye's recording. District Judge Kronstadt ruled that recordings made prior to the 1976 Copyright Act are not admissible to prove substantial similarity. Instead, each side was allowed to present expert witnesses who interpreted the protected elements of the “lead sheet,” which is a written sketch of the song deposited with the Copyright Office.

Blatt called this “a made up notion” that would render every artist who wasn't fluent in written music “second-class citizens.” Blatt's co-counsel, Richard Busch of King & Ballow, said that in every music copyright case “since the beginning of time, the recorded composition has been the basis of the claim.”

Blatt argued that even under the “Kafka-esque” rules of the trial, her clients properly prevailed. “There's 600 pages of transcript arguing about what was in the lead sheet, and the jury voted our way,” she said. Thicke and Williams “just lost on this factual issue. It happens in trials.”

Sullivan, meanwhile, said that her opponents had “completely misrepresented” the law of sound recording. She argued that the Gaye heirs' experts went beyond “interpreting” the lead sheet. “They embellished the lead sheet. They changed the lead sheet. They rewrote the lead sheet. They put things in that weren't in the lead sheet. And that's what took this case off the rails,” she said.

As in the appellate briefs, Sullivan invited the judges to listen to “Blurred Lines” and then what she called “the relevant comparison,” a recording of the protectable elements of the sheet music performed by her side's expert witnesses. Blatt described it as a “lobotomized, emasculated” recording that bears little resemblance to the original song.

The appeals court didn't seem inclined to make its own assessment. “You've got three real experts here, right?” Circuit Judge Smith said.

“Well, you have law clerks, your honor,” Sullivan replied, prompting laughter from Judge Smith.

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Scott Graham writes about intellectual property and the U.S. Courts of Appeals for ALM. He can be reached at [email protected].