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<i>Commentary:</i> Amended Opinion No Cause for Alarm in 'Blurred Lines' Case Outcome
Over the summer, a divided panel of the U.S. Court of Appeals for the Ninth Circuit issued an amended opinion affirming the denial of a new trial motion and an order denying rehearing en banc in Williams v. Gaye, 15-56880. We now consider whether the final affirmance of the jury verdict in favor of Marvin Gaye's heirs is likely to wreak havoc on musical creativity as some, including the dissent, have argued. For us, the short answer is no.
From the time that lawyers for Pharrell Williams and Robin Thicke commenced a declaratory judgment action — in response to a claim letter from attorneys for the heirs of Marvin Gaye alleging that Gaye's 1977 hit “Got to Give It Up” was infringed by the Williams and Thicke's via the 2013 best-selling single “Blurred Lines” — a public debate has unfolded parallel to developments in court.
Most recently, this debate found purchase in the impassioned dissent from the amended opinion by Ninth Circuit Judge Jacqueline H. Nguyen, wherein she concludes by warning Gaye's heirs, and, by extension, all songwriters, to be careful what they wish for: The Gayes, no doubt, are pleased by the case outcome. They shouldn't be. The music copyrights they control, including “Got to Give It Up,” now potentially infringe the copyrights of other songs that preceded the Gaye works. Judge Nguyen's observation echoes the closing argument of Howard E. King, trial counsel for Williams and Thicke, that “Blurred Lines” only emulates the genre of music represented by “Got to Give It Up,” not any original expression protected by its copyright, and therefore that a finding of infringement would stifle creativity by granting a prohibited monopoly on a musical style.
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