Lead Opinion
ORDER
Judges M. Smith and Murguia voted to deny the petition for rehearing en banc. Judge Nguyen voted to grant it. The full court has been advised of the petition for rehearing en banc, and no judge requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.
The petition for rehearing en banc, filed April 11, 2018, is DENIED.
No further petitions for panel rehearing or rehearing en banc will be entertained in this case.
M. SMITH, Circuit Judge:
After a seven-day trial and two days of deliberation, a jury found that Pharrell Williams, Robin Thicke, and Clifford Harris, Jr.'s song "Blurred Lines," the world's best-selling single in 2013, infringed Frankie Christian Gaye, Nona Marvisa Gaye, and Marvin Gaye III's copyright in Marvin Gaye's 1977 hit song "Got To Give It Up." Three consolidated appeals followed.
Appellants and Cross-Appellees Williams, Thicke, Harris, and More Water from Nazareth Publishing, Inc. (collectively, Thicke Parties) appeal from the district court's judgment. They urge us to reverse the district court's denial of their motion for summary judgment and direct the district court to enter judgment in their favor. In the alternative, they ask us to vacate the judgment and remand the case for a new trial, on grounds of instructional error, improper admission of expert testimony, and lack of evidence supporting the verdict. If a new trial is not ordered, they request that we reverse or vacate the jury's awards of actual damages and infringer's profits, and the district court's imposition of a running royalty. Finally, they seek reversal of the judgment against Harris, challenging the district court's decision to overturn the jury's general verdict finding in Harris's favor.
Appellants and Cross-Appellees Interscope Records, UMG Recordings, Inc., Universal Music Distribution, and Star Trak, LLC (collectively, Interscope Parties) appeal from the district court's judgment. They urge us to reverse the judgment against them, challenging the district
Appellees and Cross-Appellants Frankie Christian Gaye, Nona Marvisa Gaye, and Marvin Gaye III (collectively, Gayes) appeal from the district court's order on attorney's fees and costs. They request that we vacate and remand for reconsideration the district court's denial of attorney's fees, and award them their costs in full. The Gayes also protectively cross-appeal the district court's ruling limiting the scope of the Gayes' compositional copyright to the four corners of the sheet music deposited with the United States Copyright Office. In the event a new trial is ordered, the Gayes urge us to hold that Marvin Gaye's studio recording of "Got To Give It Up," rather than the deposit copy, establishes the scope of the Gayes' copyright under the Copyright Act of 1909.
We have jurisdiction over this appeal pursuant to
FACTUAL AND PROCEDURAL BACKGROUND
A. "Got To Give It Up"
In 1976, Marvin Gaye recorded the song "Got To Give It Up" in his studio. "Got To Give It Up" reached number one on Billboard's Hot 100 chart in 1977, and remains popular today.
In 1977, Jobete Music Company, Inc. registered "Got To Give It Up" with the United States Copyright Office and deposited six pages of handwritten sheet music attributing the song's words and music to Marvin Gaye. Marvin Gaye did not write or fluently read sheet music, and did not prepare the deposit copy. Instead, an unidentified transcriber notated the sheet music after Marvin Gaye recorded "Got To Give It Up."
The Gayes inherited the copyrights in Marvin Gaye's musical compositions.
B. "Blurred Lines"
In June 2012, Pharrell Williams and Robin Thicke wrote and recorded "Blurred Lines." Clifford Harris, Jr., known popularly as T.I., separately wrote and recorded a rap verse for "Blurred Lines" that was added to the track seven months later. "Blurred Lines" was the best-selling single in the world in 2013.
Thicke, Williams, and Harris co-own the musical composition copyright in "Blurred Lines." Star Trak and Interscope Records co-own the sound recording of "Blurred Lines." Universal Music Distribution manufactured and distributed "Blurred Lines."
C. The Action
The Gayes made an infringement demand on Williams and Thicke after hearing "Blurred Lines." Negotiations failed, prompting Williams, Thicke, and Harris to file suit for a declaratory judgment of non-infringement on August 15, 2013.
The Gayes counterclaimed against the Thicke Parties, alleging that "Blurred Lines" infringed their copyright in "Got To Give It Up,"
The district court denied Williams and Thicke's motion for summary judgment on October 30, 2014.
1. The District Court's Interpretation of the Copyright Act of 1909
The district court ruled that the Gayes' compositional copyright, which is governed by the Copyright Act of 1909, did not extend to the commercial sound recording of "Got To Give It Up," and protected only the sheet music deposited with the Copyright Office. The district court accordingly limited its review of the evidence to the deposit copy, and concluded there were genuine issues of material fact.
2. The Evidence
The Thicke Parties relied upon the opinion of musicologist Sandy Wilbur. The Gayes relied upon the opinions of Dr. Ingrid Monson, the Quincy Jones Professor of African American Music at Harvard University, and musicologist Judith Finell. The experts disagreed sharply in their opinions, which they articulated in lengthy reports.
Finell opined that there is a "constellation" of eight similarities between "Got To Give It Up" and "Blurred Lines," consisting of the signature phrase, hooks,
Wilbur opined that there are no substantial similarities between the melodies, rhythms, harmonies, structures, and lyrics of "Blurred Lines" and "Got To Give It Up," and disputed each area of similarity Finell identified. The district court compared Finell's testimony with Wilbur's and, pursuant to the extrinsic test under copyright law, meticulously filtered out elements Wilbur opined were not in the deposit copy, such as the backup vocals, "Theme X," descending bass line, keyboard rhythms, and percussion parts.
The district court also filtered out several unprotectable similarities Dr. Monson identified, including the use of a cowbell, hand percussion, drum set parts, background vocals, and keyboard parts. After filtering out those elements, the district court considered Dr. Monson's analysis of harmonic and melodic similarities between the songs, and noted differences between Wilbur's and Dr. Monson's opinions.
After performing its analytical dissection, as part of the extrinsic test, the district court summarized the remaining areas of dispute in the case. The district court identified disputes regarding the similarity of the songs' signature phrases, hooks, bass lines, keyboard chords, harmonic structures, and vocal melodies. Concluding that genuine issues of material fact existed, the district court denied Williams and Thicke's motion for summary judgment.
E. Trial
The case proceeded to a seven-day trial. The district court ruled before trial that the Gayes could present sound recordings of "Got To Give It Up" edited to capture only elements reflected in the deposit copy. Consequently, the commercial sound recording of "Got To Give It Up" was not played at trial.
Williams and Thicke testified, each acknowledging inspiration from Marvin Gaye and access to "Got To Give It Up."
Finell testified that "Blurred Lines" and "Got To Give It Up" share many similarities,
Dr. Monson played three audio-engineered "mash-ups" she created to show the melodic and harmonic compatibility between "Blurred Lines" and "Got To Give It Up." She testified that the two songs shared structural similarities on a sectional and phrasing level.
Wilbur opined that the two songs are not substantially similar and disputed Finell and Dr. Monson's opinions. Wilbur prepared and played a sound recording containing her rendition of the deposit copy of "Got To Give It Up."
Neither the Thicke Parties nor the Gayes made a motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(a) before the case was submitted to the jury.
On March 10, 2015, after two days of deliberation, the jury returned mixed general verdicts.
F. The District Court's Order on Post-Trial Motions
The district court ruled on the parties' various post-trial motions in an omnibus order.
The Thicke Parties filed a motion for judgment as a matter of law, a new trial, or remittitur. The district court denied the Thicke Parties' motion for judgment as a matter of law and motion for a new trial, but remitted the award of actual damages and the award of Williams' profits.
The Gayes filed three motions, seeking (1) a declaration that Harris and the Interscope Parties were liable for infringement; (2) injunctive relief or, in the alternative, ongoing royalties; and (3) prejudgment interest. The district court construed the Gayes' motion for declaratory relief as a post-trial motion for judgment as a matter of law, and granted the motion, overturning the jury's general verdicts in favor of Harris and the Interscope Parties. The district court denied the Gayes' request for injunctive relief, but awarded them a running royalty of 50% of future songwriter and publishing revenues from "Blurred Lines." The district court granted in part the Gayes' motion for prejudgment interest.
G. The Judgment and Order on Attorney's Fees and Costs
The district court entered judgment on December 2, 2015. The court awarded the Gayes $3,188,527.50 in actual damages, profits of $1,768,191.88 against Thicke and $357,630.96 against Williams and More
On April 12, 2016, the district court denied the Gayes' motion for attorney's fees and apportioned costs between the parties. The parties timely appealed.
ANALYSIS
I. Governing Law
We begin by discussing the law applicable to this case.
A. Elements of a Copyright Infringement Claim
To prevail on a copyright infringement claim, a plaintiff must show that (1) he or she owns the copyright in the infringed work, and (2) the defendant copied protected elements of the copyrighted work. Swirsky v. Carey ,
We use a two-part test for substantial similarity: an extrinsic test and an intrinsic test. Swirsky ,
The extrinsic test is objective. Swirsky ,
The intrinsic test, on the other hand, is subjective. Three Boys Music ,
"Because the requirement is one of substantial similarity to protected elements of the copyrighted work, it is essential to distinguish between the protected and unprotected material in a plaintiff's work."
B. The Standard of Similarity for Musical Compositions
We have distinguished between "broad" and "thin" copyright protection based on the "range of expression" involved. Mattel, Inc. v. MGA Entm't, Inc. ,
We reject the Thicke Parties' argument that the Gayes' copyright enjoys only thin protection. Musical compositions are not confined to a narrow range of expression.
Marvin Gaye composed "Got To Give It Up" before January 1, 1978, the effective date of the Copyright Act of 1976. Accordingly, the Copyright Act of 1909 governs the Gayes' compositional copyright. See Twentieth Century Fox Film Corp. v. Entm't Distrib. ,
While the Copyright Act of 1976 protects "works of authorship" fixed in "sound recordings,"
The Gayes cross-appeal the district court's interpretation of the 1909 Act only in the event the case is remanded for a new trial. The parties have staked out mutually exclusive positions. The Gayes assert that Marvin Gaye's studio recording may establish the scope of a compositional copyright, despite the 1909 Act's lack of protection for sound recordings. The Thicke Parties, on the other hand, elevate the deposit copy as the quintessential measure of the scope of copyright protection.
II. The District Court's Order Denying Summary Judgment is Not Reviewable After a Full Trial on the Merits.
The Thicke Parties seek review of the district court's order denying their motion
The order is not reviewable. The Supreme Court has squarely answered the question: "May a party ... appeal an order denying summary judgment after a full trial on the merits? Our answer is no." Ortiz v. Jordan ,
The Thicke Parties argue that we may nonetheless review the district court's denial of summary judgment for legal error. We "generally do 'not review a denial of a summary judgment motion after a full trial on the merits.' " Escriba v. Foster Poultry Farms, Inc. ,
Ortiz calls into question the continuing viability of our exception.
We need not decide today whether our exception survives Ortiz unaltered. The Thicke Parties' arguments "hardly present 'purely legal' issues capable of resolution 'with reference only to undisputed facts.' "
III. The District Court Did Not Abuse its Discretion in Denying a New Trial.
We review the district court's denial of a motion for a new trial for abuse of discretion. Lam v. City of San Jose ,
The Thicke Parties argue that a new trial is warranted on three grounds: (1) Jury Instructions 42 and 43 were erroneous; (2) the district court abused its discretion in admitting portions of Finell and Dr. Monson's testimony; and (3) the verdict is against the clear weight of the evidence. We disagree, and discuss each ground in turn.
A. Instructions 42 and 43 Were Not Erroneous.
We review de novo whether jury instructions state the law accurately, but review a district court's formulation of jury instructions for abuse of discretion.
1. Jury Instruction 42
The Thicke Parties argue that Instruction 42 allowed the jury to place undue weight on Williams and Thicke's statements claiming inspiration from "Got To Give It Up" and Marvin Gaye. The district court instructed the jurors:
In order to find that the Thicke Parties copied either or both of the Gaye Parties' songs, it is not necessary that you find that the Thicke Parties consciously or deliberately copied either or both of these songs. It is sufficient if you find that the Thicke Parties subconsciously copied either or both of the Gaye Parties' songs.
Because direct evidence is rare, copying is usually circumstantially proved by a combination of access and substantial similarity. See Swirsky ,
The Thicke Parties argue that Instruction 42 was nonetheless inappropriate, because the issue of access was not at issue. Not so. The Thicke Parties take an unduly narrow view of Instruction 42 in isolation. The instructions as a whole make plain that a circumstantial case of copying requires not just access, but also substantial similarity. Instructions 28 and 41 provide that copying may be proven by demonstrating access plus substantial similarity.
In light of the foregoing, we conclude that the district court did not err in giving Jury Instruction 42.
2. Jury Instruction 43
The Thicke Parties argue that Instruction 43 erroneously instructed the jury to consider unprotectable elements. Specifically, they contend that the district court instructed the jury that it "must consider" elements that they contend are not present in the deposit copy: "Theme X," the descending bass line, and keyboard parts. Instruction 43 states, in pertinent part:
Extrinsic similarity is shown when two works have a similarity of ideas and expression as measured by external, objective criteria. To make this determination, you must consider the elements of each of the works and decide if they are substantially similar. This is not the same as "identical." There has been testimony and evidence presented by both sides on this issue, including by expert witnesses, as to such matters as: (a) for "Got to Give It Up" and "Blurred Lines," the so-called "Signature Phrase," hook, "Theme X," bass melodies, keyboard parts, word painting, lyrics, [and] rap v. parlando .... The Gaye Parties do not have to show that each of these individual elements is substantially similar, but rather that there is enough similarity between a work of the Gaye Parties and an allegedly infringing work of the Thicke Parties to comprise a substantial amount.
First, the Thicke Parties take the word "must" out of context. Instruction 43's use of the word "must" serves to underline the extrinsic test's requirement that the jury compare the objective elements of the works for substantial similarity.
Second, Finell testified that "Theme X," the descending bass line, and the keyboard parts are reflected in the deposit copy, while Wilbur testified to the contrary. The experts' quarrel over what was in the deposit copy was a factual dispute for the jury to decide. Even if Instruction 43's inclusion of contested elements could have led the jury to believe that the elements were in the deposit copy, and to consider them as protectable elements for purposes of the substantial similarity analysis, we cannot view Instruction 43 in isolation. In light of the jury instructions as a whole, we do not conclude that the district court's listing of elements in Instruction 43 prevented the jury from making a factual determination of what was in the deposit copy.
The instructions on whole make clear that the jury could consider only elements in the deposit copy. Instruction 28 states that the Gayes bear "the burden of proving that the Thicke Parties copied original elements from the Gaye[s'] copyrighted work." Instruction 35, in turn, defines the Gayes' copyrighted work. Instruction 35 informed jurors that at the time the copyright in "Got To Give It Up" was registered, "only written music could be filed by a copyright owner with the Copyright Office as the deposit copy of the copyrighted work." In contrast, "[r]ecordings of musical compositions could not be filed with the Copyright Office at that time." The district court cautioned the jurors to distinguish
Harper House, Inc. v. Thomas Nelson, Inc. ,
Suffice to say, musical compositions are not like organizers, and this case is easily distinguishable. The jury never heard the commercial sound recording. Elements indisputably present only in the sound recording, such as the use of cowbell and party noises, were never played at trial. Had that been the case, the district court would have had to instruct the jury to distinguish between elements in the commercial recording and elements in the deposit copy. Instead, the jury heard sound clips edited to capture elements that the experts testified were in the deposit copy. The question of which expert to believe was properly confided to the jury.
The district court did not err in giving Instruction 43.
B. The District Court Did Not Abuse its Discretion in Admitting Portions of Finell and Dr. Monson's Testimony.
We review the district court's evidentiary rulings for abuse of discretion. Wagner v. County of Maricopa ,
1. Finell's Testimony
The Thicke Parties object only to three portions of Finell's testimony: her testimony regarding "Theme X," the descending bass line, and the keyboard parts. Finell testified that "Theme X," the descending bass line, and the keyboard rhythms were in the deposit copy.
Finell was cross-examined for four hours. During cross-examination, Finell conceded that the notes of "Theme X" were not written on the sheet music, and she was questioned about her testimony that the notes of "Theme X" were implied in the deposit copy. She also acknowledged that the bass melody she presented at trial differed from that notated in the deposit copy. She was impeached with her deposition testimony, in which she admitted that the rhythm of the keyboard parts in the sound recording of "Got To Give It Up" is not notated in the deposit copy.
Wilbur disputed her testimony, opining that "Theme X," the descending bass line, and the keyboard rhythms are not contained in the deposit copy. The dispute
2. Dr. Monson's Testimony
The Thicke Parties argue that the district court abused its discretion in allowing Dr. Monson to play audio "mash-ups" superimposing Marvin Gaye's vocals from "Got To Give It Up" onto the accompaniment in "Blurred Lines," and vice versa. They argue that the "mash-ups" contained unprotectable elements, such as the keyboard parts, bass melodies, and Marvin Gaye's vocals.
This argument faces the same hurdle as the Thicke Parties' objection to Finell's testimony. Dr. Monson testified that there were structural similarities between the two songs at a sectional level and at a phrasing level, and used the "mash-ups" to demonstrate the songs' shared harmonic and melodic compatibility. We have permitted similar expert testimony in the past. Cf. Swirsky ,
Our decision in Three Boys Music confirms that the district court acted within its discretion. Three Boys Music was a 1909 Act copyright infringement case in which the jury heard not only a rendition of the deposit copy, see
C. The Verdict Was Not Against the Clear Weight of the Evidence.
The Thicke Parties argue that the verdict is against the clear weight of the evidence, maintaining that there is no extrinsic or intrinsic similarity between the two songs.
We are bound by the " 'limited nature of our appellate function' in reviewing the district court's denial of a motion for a new trial." Lam ,
The Thicke Parties face significant, if not unsurmountable, hurdles. First, we are generally reluctant to disturb the trier of fact's findings, and have made clear that "[w]e will not second-guess the jury's application of the intrinsic test."
IV. The Awards of Actual Damages and Profits and the District Court's Running Royalty Were Proper.
A. The Award of Damages Was Not Based on Undue Speculation.
We afford "great deference" to a jury's award of damages and will uphold the award "unless it is 'clearly not supported by the evidence' or 'only based on speculation or guesswork.' " In re First All. Mortg. Co. ,
Here, the jury awarded the Gayes actual damages in the amount of 50% of the publishing revenues for "Blurred Lines." The Thicke Parties ask us to vacate the award of $3,188,527.50 (remitted by the district court from the jury's original award of $4 million),
The Gayes called Nancie Stern, an industry expert with over twenty years of experience in negotiating and assigning valuations for the use of portions of older musical compositions in new compositions. Stern has performed such valuations thousands of times. Major labels, as well as renowned artists, have retained her services. Few other people or businesses perform her line of work.
Stern testified that the prototypical negotiation centers on the percentage of the new musical composition that the owner of the older composition should receive for the use. The industry standard assigns 50% for the music and 50% for the lyrics. Turning to the two songs at hand, Stern opined that the value of the use of "Got To Give It Up" in "Blurred Lines" would have been 50% had the Thicke Parties sought a license pre-release. Had the Thicke Parties sought a license post-release, the valuation would range between 75% to 100% percent. Stern arrived at her conclusion by reviewing "snippets" of the two songs and "A-B'ing" them, or playing them back and forth.
In an attempt to buttress their position, the Thicke Parties cite to two decisions which are distinguishable. In Oracle , we held the jury's award of $1.3 billion in hypothetical-license damages to be unduly speculative because "the evidence presented at trial failed to provide 'the range of the reasonable market value' " underlying the actual damages award.
Here, as in Oracle , there is no evidence of a prior benchmark license agreement between the Thicke Parties and the Gayes. However, in contrast to Oracle , the Gayes tethered their hypothetical license damages to evidence of a benchmark license in the industry. Instead of relying on undue speculation, the Gayes presented an expert who had extensive and specialized knowledge regarding the type of hypothetical license at issue. Stern opined, based on an industry standard and her evaluation of the songs involved, that the reasonable market value of a license would range between 50% pre-release and 75% to 100% post-release.
In Uniloc USA, Inc. v. Microsoft Corp. ,
B. The Award of Profits Is Not Clearly Erroneous.
We review an apportionment of infringer's profits for clear error. Cream Records, Inc. v. Joseph Schlitz Brewing Co. ,
The Thicke Parties contend that the award of $1,768,191.88 in profits against Thicke and $357,630.96 (remitted by the district court from the jury's original award of $1,610,455.31) against Williams, which amounted to approximately 40% of their non-publishing profits from "Blurred Lines," is excessive. They assert that the evidence supports a profits award of only 5%, citing Wilbur's opinion that less than 5% of "Blurred Lines" contains elements allegedly similar to ones in "Got To Give It Up."
We affirmed a similar profits award in Three Boys Music . See
C. The District Court Did Not Abuse its Discretion in Awarding the Gayes a Running Royalty at the Rate of 50%.
We review a district court's decision to award equitable relief for abuse of discretion. Traxler v. Multnomah County ,
The district court based the royalty rate on Stern's testimony. For the same reasons set forth above, see supra Part VI.A, we conclude that the district court did not abuse its discretion in awarding the Gayes a running royalty at the rate of 50%.
V. The District Court Erred in Overturning the Jury's General Verdict in Favor of Harris and the Interscope Parties.
We review de novo a district court's grant of judgment as a matter of law. Wallace v. City of San Diego ,
Harris and the Interscope Parties contend that the district court erred in overturning the jury's general verdicts finding in their favor. We agree. First, the Gayes waived any challenge to the consistency of the jury's general verdicts. Second, even had the Gayes preserved their challenge, neither Federal Rule of Civil Procedure 50(b) nor our decisions in Westinghouse ,
A. The Gayes Waived Any Challenge to the Consistency of the Jury's General Verdicts.
A party "waive[s] its objection to the jury's verdict ... by not objecting to the alleged inconsistency prior to the dismissal of the jury." Home Indem. Co. v. Lane Powell Moss & Miller ,
"Under Rule 50, a party must make a Rule 50(a) motion for judgment as a matter of law before a case is submitted to the jury." EEOC v. Go Daddy Software, Inc. ,
C. Westinghouse and El-Hakem Do Not Apply.
The district court relied on two of our decisions to overturn the jury's general verdicts: Westinghouse ,
In Westinghouse , we affirmed a district court's decision to reconcile inconsistent general verdicts resulting from an erroneous jury instruction. See
However, Westinghouse involved a "seemingly rare situation."
Those rare circumstances are not present in this case. The district court concluded that its instructions on distribution liability were inadequate, and that with clearer instructions, the jury would necessarily have found the Interscope Parties and Harris liable for distributing the infringing work. However, the instructions did not contain any error on par with the unmistakably erroneous instruction in Westinghouse .
Next, El-Hakem does not authorize the reconciliation of inconsistent general verdicts. It is clear that our holding in
D. Harris Is Not Vicariously Liable.
The district court erred in entering judgment against Harris for the additional reason that the Gayes proffered no evidence establishing that Harris was secondarily liable for vicarious infringement. The Gayes argue, without citing to the record or to any law, that Harris is liable as a matter of law as a co-owner of the copyright who authorized the distribution of "Blurred Lines."
To be vicariously liable for copyright infringement, one must have "(1) the right and ability to supervise the infringing conduct and (2) a direct financial interest in the infringing activity." Perfect 10, Inc. v. Visa Int'l Serv., Ass'n ,
No evidence was adduced at trial supporting a theory of vicarious liability. Harris, who did not testify at trial, independently wrote and recorded a rap verse that was added to the track seven months after Thicke and Williams created "Blurred Lines." Neither Thicke nor Williams expected the later addition of a rap verse or had anything to do with its creation. The Gayes have cited nothing in the record demonstrating that Harris had either a right to stop the infringing conduct or the ability to do so, much less both.
We conclude that the district court erred in upsetting the jury's general verdicts in favor of Harris and the Interscope Parties and entering judgment against them.
VI. The District Court Did Not Abuse its Discretion in Denying the Gayes' Motion for Attorney's Fees.
We review a district court's decision on attorney's fees for abuse of discretion. Stetson v. Grissom ,
The Gayes request that we vacate the district court's order denying their motion for attorney's fees and remand the case for reconsideration in light of Kirtsaeng v. John Wiley & Sons, Inc. , --- U.S. ----,
Here, the district court's examination of objective reasonableness was but one factor in its analysis. The district court took the specific circumstances of the case into consideration, including the degree of success obtained, the purposes of the Copyright Act, the chilling effect of attorney's fees, motivation, frivolousness, factual and legal unreasonableness, compensation, and deterrence. The district court did not abuse its discretion in denying the Gayes' motion for attorney's fees, and a remand on that issue is not warranted.
VII. The District Court Did Not Abuse its Discretion in Apportioning Costs Among the Parties.
We review the district court's award of costs for abuse of discretion. Draper v. Rosario ,
Federal Rule of Civil Procedure 54(d)(1) authorizes the award of costs "to the prevailing party." A "party in whose favor judgment is rendered is generally the prevailing party for purposes of awarding costs under Rule 54(d)." San Diego Police Officers' Ass'n v. San Diego City Emps.' Ret. Sys. ,
The Gayes urge us to adopt the Federal Circuit's holding that "there can only be one prevailing party in a given case" for purposes of Rule 54(d)(1). Shum v. Intel Corp. ,
The dissent's position violates every controlling procedural rule involved in this case. The dissent improperly tries, after a full jury trial has concluded, to act as judge, jury, and executioner, but there is no there there, and the attempt fails.
Two barriers block entry of judgment as a matter of law for the Thicke Parties. The dissent attempts to sidestep these obstacles: It finds that the Thicke Parties are entitled to judgment as a matter of law, but fails to explain the procedural mechanism by which this could be achieved. Given this flawed premise, it is perhaps unsurprising how little the dissent mirrors the majority opinion, and how far it veers into analysis untethered from the procedural posture of this case.
First, the dissent incorrectly concludes that there are no procedural obstacles barring entry of judgment as a matter of law for the Thicke Parties. The dissent is unable to distinguish the Supreme Court's decision in Ortiz , which prevents us from reviewing the district court's order denying summary judgment after a full trial on the merits.
Second, the Thicke Parties, like the Gayes, failed to make a Rule 50(a) motion for judgment as a matter of law at trial. Their failure to do so "precludes consideration of a Rule 50(b) motion for judgment as a matter of law." Tortu ,
This procedural limitation is well worth underscoring. We held, in a case in which a party made an oral Rule 50(a) motion, but failed to renew its motion, that the party "waived its challenge to the sufficiency of the evidence because it did not renew its pre-verdict Rule 50(a) motion by filing a post-verdict Rule 50(b) motion." Nitco Holding Corp. v. Boujikian ,
The dissent cites Anderson v. Liberty Lobby, Inc. ,
[T]he "genuine issue" summary judgment standard is "very close" to the "reasonable jury" directed verdict standard: "The primary difference between the two motions is procedural; summary judgment motions are usually made before trial and decided on documentary evidence, while directed verdict motions are made at trial and decided on the evidence that has been admitted."
The dissent cites a number of cases it claims support the proposition that a court must award judgment as a matter of law when it is able to determine substantial similarity, or lack thereof, under the extrinsic test. None of the cases the dissent cites, however, authorizes us to review a factbound summary judgment denial after a full trial on the merits, or to enter judgment as a matter of law in the absence of a Rule 50(a) motion below. All of the cases cited in the dissent arise from a different procedural posture, and are clearly distinguishable. See Rentmeester v. Nike, Inc. ,
The dissent's remaining alternative to entering judgment as a matter of law for the Thicke Parties is to vacate the judgment and remand for a new trial. Although the dissent does not state so expressly, it appears that the dissent would reverse the district court's denial of the Thicke Parties' motion for a new trial on grounds that the verdict is against the clear weight of the evidence.
Assuming, arguendo , that is the route the dissent wishes to pursue, it nevertheless runs into several hurdles. Critically, there is no reference to the deferential standard of review applicable to the district court's denial of the Thicke Parties' motion for a new trial. Indeed, there is no discussion of the district court's denial of the motion for a new trial at all. It bears repeating, then, that we are bound by the " 'limited nature of our appellate function' in reviewing the district court's denial of a motion for a new trial." Lam ,
In a thorough order, the district court reviewed the evidence presented at trial, and concluded that the verdict was not against the clear weight of the evidence. In faulting us for "tellingly refus[ing] to explain" the evidence supporting the verdict, the dissent ignores the weighty restrictions on our review at this procedural stage of the case. The dissent jettisons the constraints on our review, instead opting for the radical route of playing both expert and juror. The dissent weighs the experts' credibility, resolves factual conflicts, and sets forth its own findings on the extrinsic test.
To buttress this point, in Swirsky , we reversed the district court's grant of summary judgment of non-infringement, finding the district court erred, in large part, by conducting an analysis similar to the one the dissent has undertaken here. See
Second, we held in Swirsky that the district court "erred by basing its comparison of the two choruses almost entirely on a measure-by-measure comparison of melodic note sequences from the full transcriptions of the choruses."
Consider the principle that, at summary judgment, so long as the Gayes "presented 'indicia of a sufficient disagreement concerning the substantial similarity of [the] two works,' then the case must be submitted to a trier of fact." Id. at 844 (alteration in original) (emphasis added) (quoting Brown Bag Software v. Symantec Corp. ,
Moreover, the expert review conducted by the dissent does not provide a workable standard for district courts to follow. It is unrealistic to expect district courts to possess even a baseline fluency in musicology, much less to conduct an independent musicological analysis at a level as exacting as the one used by the dissent. After all, we require parties to present expert testimony in musical infringement cases for a reason. See id. at 845.
The dissent has failed to take into account another wrinkle that would ensue from vacating the judgment and remanding the case for a new trial. The Gayes have cross-appealed protectively, challenging the district court's interpretation of the 1909 Act, in the event a new trial is ordered. Even though a vacatur and remand would trigger the Gayes' protective cross-appeal, the dissent does not wrestle with the merits of this issue. While the dissent is adamant that the scope of the Gayes' copyright is limited to the four corners of the deposit copy, it provides no statutory interpretation or legal analysis supporting its assertion.
CONCLUSION
We have decided this case on narrow grounds. Our conclusions turn on the procedural posture of the case, which requires us to review the relevant issues under deferential standards of review. For the foregoing reasons, we reverse the district court's entry of judgment against Harris and the Interscope Parties, and affirm the remainder of the district court's judgment, and its order denying attorney's fees and apportioning costs.
The parties shall bear their own costs on appeal.
AFFIRMED IN PART, REVERSED IN PART.
The Gayes asserted a second counterclaim alleging that Thicke's song "Love After War" infringed their copyright in Marvin Gaye's composition "After the Dance." The jury found against the Gayes on the second counterclaim, and judgment was entered against them. On appeal, the second counterclaim is relevant only to the issue of costs.
According to Finell, the term "hook" refers to the most important and memorable melodic material of a piece of popular music.
Finell named a repeated four-note backup vocal in "Got To Give It Up" as "Theme X."
Although the verdict forms are captioned "Special Verdict," they are functionally general verdict forms. See Zhang v. Am. Gem Seafoods, Inc. ,
More Water From Nazareth Publishing, Inc. collects royalties on Williams' behalf.
"Copyright protection subsists ... in original works of authorship," including "musical works" and "any accompanying words," that are "fixed in any tangible medium of expression."
Even the de minimis exception, which renders insignificant copying inactionable, does not require a standard of similarity as exacting as virtual identity. See VMG Salsoul, LLC v. Ciccone ,
To our knowledge, the Thicke Parties' position had not found support in case law until the district court's ruling. See Three Boys Music ,
While Escriba , a 2014 decision, post-dates Ortiz , Escriba does not reference the Supreme Court's decision. See
Instruction 28 provides: "The Gaye Parties may show the Thicke Parties copied from the work by showing by a preponderance of the evidence that the Thicke Parties had access to the Gaye Parties' copyrighted work and that there are substantial similarities between the Thicke Parties' work and original elements of the Gaye Parties' work." That the instruction uses the permissive "may" presents no problem. It simply reflects the fact that the Gayes may, but are not required to, prove copying by way of a circumstantial theory, rather than a direct one.
Instruction 41 provides: "If you conclude that the Thicke Parties had access to either or both of the Gaye Parties' works before creating either or both of their works, you may consider that access in connection with determining whether there is substantial similarity between either or both pairs of works." Instruction 41's use of "may" is not problematic either. Instruction 41 merely reiterates that the Gayes may choose to prove infringement by using a circumstantial theory.
Wilbur initially relied upon the commercial sound recording of "Got To Give It Up" to prepare her transcriptions. She continued to rely upon her transcriptions from the commercial sound recording, finding that they were substantially the same as the transcriptions prepared from the deposit copy.
On cross-examination, Wilbur acknowledged that a lead sheet reflects a simplified version of a chord pattern in a composition, and that chord notation is merely representational.
Wilbur also acknowledged that she relied on her interpretation of what was contained within the lead sheet to create her recording of "Got To Give It Up." She admitted that she made choices to deviate from the sheet music, and that her choices were informed by her musical training and knowledge. For example, despite the sheet music's instruction to continue playing a bass line throughout the song, she chose not to do so in certain parts of the song, knowing that playing the bass line would clash with certain chords.
Although the "mash-ups" used Marvin Gaye's vocals, the parties have not disputed whether Marvin Gaye's vocals were notated in the deposit copy.
It appears that factfinders have listened to commercial sound recordings in other music copyright infringement cases governed by the 1909 Act. See, e.g. , Repp v. Webber ,
Our conclusion in Three Boys Music provides an example of the deference we must apply in reviewing the jury's verdict. Although that case presented "a weak case of access and a circumstantial case of substantial similarity," we held that "neither issue warrants reversal of the jury's verdict."
The district court concluded that it had erred in informing the jury that the publishing revenues amounted to $8 million, where the parties had stipulated that the publishing revenues totaled $6,377,055. Having determined that the jury applied a royalty rate of 50% to the publishing revenues, the district court remitted the damages award from $4 million to $3,188,527.50, which is 50% of $6,377,055.
Although the Thicke Parties contend that Stern impermissibly based her testimony on the sound recording of "Got To Give It Up," Stern testified that her opinion was based solely on the edited clips approved for trial.
The Gayes have not addressed the issue of waiver on appeal.
There is one safety valve for what is otherwise a "harsh" rule: "Rule 50(b)'may be satisfied by an ambiguous or inartfully made motion' under Rule 50(a).' " Go Daddy Software, Inc. ,
It is true, as the Gayes observe, that while we classified the verdicts in El-Hakem as special verdicts, they were functionally general verdicts. See El-Hakem v. BJY Inc .,
The parties' stipulation that Harris co-owned 13% of the musical composition copyright in "Blurred Lines" sheds no light on Harris's role in the distribution process.
Additional authorities support our conclusion. See In re Paoli R.R. Yard PCB Litig. ,
Even in a case where the defendant argued that the district court "induced him not to file [a] Rule 50(a) motion," we nonetheless adhered to the strict requirements of Rule 50, noting that the defendant still "could have filed a Rule 50(a) motion ... before the matter had been submitted to the jury," and holding that the defendant's "disregard[ ]" of Rule 50's "clear requirements" foreclosed the possibility of relief pursuant to Rule 50(b). Tortu ,
The dissent does not mention the fact that the jury also considered the intrinsic test in reaching its verdict. The dissent correctly stops short of explicitly "second-guess[ing] the jury's application of the intrinsic test," Three Boys Music ,
Unlike the 1909 Act, the current copyright regime, established by the 1976 Act, protects "works of authorship" fixed in "sound recordings."
Dissenting Opinion
The majority allows the Gayes to accomplish what no one has before: copyright a musical style. "Blurred Lines" and "Got to Give It Up" are not objectively similar. They differ in melody, harmony, and rhythm. Yet by refusing to compare the two works, the majority establishes a dangerous precedent that strikes a devastating blow to future musicians and composers everywhere.
While juries are entitled to rely on properly supported expert opinion in determining substantial similarity, experts must be able to articulate facts upon which their conclusions-and thus the jury's findings-logically rely. Here, the Gayes' expert, musicologist Judith Finell, cherry-picked brief snippets to opine that a "constellation" of individually unprotectable elements in both pieces of music made them substantially similar. That might be reasonable if the two constellations bore any resemblance. But Big and Little Dipper they are not. The only similarity between these "constellations" is that they're both compositions of stars.
I.
When a court, with the assistance of expert testimony, is able to determine substantial similarity (or lack thereof) under the extrinsic test, judgment must be given as a matter of law. See Benay v. Warner Bros. Entm't, Inc. ,
The majority, like the district court, presents this case as a battle of the experts in which the jury simply credited one expert's factual assertions over another's. To the contrary, there were no material factual disputes at trial. Finell testified about certain similarities between the deposit copy of the "Got to Give It Up" lead sheet and "Blurred Lines." Pharrell Williams and Robin Thicke don't contest the existence of these similarities. Rather, they argue that these similarities are insufficient to support a finding of substantial similarity as a matter of law. The majority fails to engage with this argument.
Finell identified a few superficial similarities at the "cell" level by focusing on individual musical elements, such as rhythm or pitch, entirely out of context. Most of these "short ... pattern[s]" weren't themselves protectable by copyright, and Finell ignored both the other elements with which they appeared and their overall placement in each of the songs. Her analysis is the equivalent of finding substantial similarity between two pointillist paintings because both have a few flecks of similarly colored paint. A comparison of the deposit copy of "Got to Give it Up" and "Blurred Lines" under the extrinsic test leads to only one conclusion. Williams and Thicke were entitled to judgment as a matter of law.
II.
A.
The purpose of copyright law is to ensure a robust public domain of creative works. See Sony Corp. of Am. v. Universal City Studios, Inc. ,
An important limitation on copyright protection is that it covers only an author's expression-as opposed to the idea underlying that expression. See
The idea/expression dichotomy, as this principle is known, "strikes a definitional balance between the First Amendment and the Copyright Act." Bikram's Yoga Coll. of India, L.P. v. Evolation Yoga, LLC ,
Such accommodations are necessary because "in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout." Campbell v. Acuff-Rose Music, Inc. ,
B.
"Blurred Lines" clearly shares the same "groove" or musical genre as "Got to Give It Up," which everyone agrees is an unprotectable idea. See, e.g. , 2 William F. Patry, Patry on Copyright § 4:14 (2017) ("[T]here is no protection for a communal style...."). But what the majority overlooks is that two works in the same genre must share at least some protectable expression in order to run afoul of copyright law.
Not all expression is protectable. Originality, the "sine qua non of copyright," accommodates authors' need to build on the works of others by requiring copyrightable expression to be "independently created by the author" and have "at least some minimal degree of creativity." Feist ,
Even original expression can be so intimately associated with the underlying idea as to be unprotectable. Under the doctrine of scènes à faire, "expressions that are standard, stock, or common to a particular subject matter or medium are not protectable under copyright law." Satava v. Lowry ,
The majority begins its analysis by suggesting that the Gayes enjoy broad copyright protection because, as a category, "[m]usical compositions are not confined to a narrow range of expression." Maj. Op. at 1120. But the majority then contrasts this protected category as a whole with specific applications of other protected categories-the "page-shaped computer desktop icon" in Apple Computer (an audiovisual work) and the "glass-in-glass jellyfish sculpture" in Satava (a pictorial, graphic, and sculptural work)
More importantly, "[t]he mere fact that a work is copyrighted does not mean that every element of the work may be protected." Feist ,
The majority doesn't explain what elements are protectable in "Got to Give It Up," which is surprising given that our review of this issue is de novo. See Mattel, Inc. v. MGA Entm't, Inc. ,
The issue here isn't whether Williams and Thicke copied "Got to Give It Up"-there's plenty of evidence they were attempting to evoke Marvin Gaye's style. Rather, the issue is whether they took too much.
Copying in and of itself "is not conclusive of infringement. Some copying is permitted." Newton II ,
Requiring similarities to be substantial is of heightened importance in cases involving musical compositions. Sound recordings have "unique performance elements" that must be "filter[ed] out ... from consideration." Newton II ,
III.
The Gayes don't contend that every aspect of "Blurred Lines" infringes "Got to Give It Up." Rather, they identify only a few features that are present in both works. These features, however, aren't individually protectable. And when considered in the works as a whole, these similarities aren't even perceptible, let alone substantial.
Musical compositions are expressed primarily through the building blocks of melody, harmony, and rhythm.
The melodic line and the associated lyrics are notated throughout the deposit copy. The bass line is notated for only the first eight measures,
A. Alleged Melodic Similarities
1. The "Signature" Phrase
Finell dubbed a 10-note melodic sequence in the deposit copy the "Signature Phrase." She argued that it corresponded to a 12-note sequence in "Blurred Lines," notwithstanding that "no two notes have the same pitch, rhythm and placement," as the district court correctly observed.
Finell identified four similar elements, none of which is protectable: (a) each phrase begins with repeated notes; (b) the phrases have three identical pitches in a row in the first measure and two in the second measure; (c) each phrase begins with the same rhythm; and (d) each phrase ends on a melisma (one word sung over multiple pitches).
a. Repeated Notes
The Signature Phrase begins in "Got to Give It Up" with a note repeated four times. In "Blurred Lines," it begins with a note repeated twice, followed by a different note, followed by the first note.
b. Pitch Similarity
Although the Signature Phrase starts on different pitches in each piece, Finell identified three consecutive ascending pitches that were the same in both pieces, and two consecutive descending pitches that were the same. She believed this similarity to be the most important.
In assessing the similarity of two pieces of music, it's important to keep in mind "the limited number of notes and chords available to composers and the resulting fact that common themes frequently reappear in various compositions, especially in popular music." Gaste v. Kaiserman ,
Three consecutive pitches is just the sort of common theme that will recur in many compositions.
In Newton II , we considered a three-note musical phrase that the defendants sampled (i.e. , copied exactly) from the sound recording of a copyrighted musical composition and used repeatedly throughout their work. Although we did not decide whether this six-second segment was original enough to be protected, we held that "no reasonable juror could find [it] to be a quantitatively or qualitatively significant portion of the [four-and-a-half-minute] composition as a whole." Newton II ,
The two- and three-note melodic snippets at issue here, taken in isolation from their harmonic context, are even less original than the three-note segment at issue in Newton . When played, each snippet lasts less than a second in a composition that lasts over four minutes. They are not individually protectable.
c. Rhythmic Similarity
The first measure of the Signature Phrase in both works begins with a rhythm of six eighth notes. A bare rhythmic pattern, particularly one so short and
d. Melisma
The final syllable of the lyrics in each phrase spans multiple pitches-three in "Got to Give It Up" and two in "Blurred Lines." Melisma, however, is "a common musical technique" and, as such, unprotectable. McDonald v. West ,
e. The Signature Phrases as a Whole Are Not Substantially Similar
Even when each element is not individually protectable, "[t]he particular sequence in which an author strings a significant number of unprotectable elements can itself be a protectable element," Metcalf v. Bochco ,
There is very little similarity between the two songs' Signature Phrases. Both melodies rise and fall. But they begin and end on different pitches. The highest, longest, most stressed pitch in each phrase is different-in "Blurred Lines," this pitch is consonant with the underlying harmony; in "Got to Give It Up," it is dissonant. One phrase has 10 notes; the other, 12. The five identical pitches in each of the phrases have different rhythmic placement within the measure and therefore receive different stress. And only two of these identical pitches have similar underlying harmonies.
The various unprotected elements identified by Finell don't even coincide with one another in that short, four-second snippet. And her narrow focus on these elements ignored the different harmonies in each phrase. "To pull these elements out of a song individually, without also looking at them in combination, is to perform an
Given the lack of similarities between the Signature Phrases, there is no basis to conclude that they are substantially similar. "The most that can be said is that the two segments bear some relation to one another within a finite world of melodies. Given the limited musical vocabulary available to composers, this is far from enough to support an inference of [infringement]." Johnson v. Gordon ,
2. The "Hook" Phrase
Finell describes the Hook Phrase as the four melodic pitches in "Got to Give It Up" sung to the lyrics "keep on dancin'." She opined that "Blurred Lines" has similar Hook Phrases in two different places: one is the four pitches in the Signature Phrase sung to the lyrics "take a good girl"; the other is the five pitches sung to the lyrics "I hate these blurred lines."
There are basic conceptual problems with Finell's analysis. She describes the same four pitches in "Blurred Lines" as being similar to two unrelated phrases in "Got to Give It Up"-the Signature Phrase and the Hook Phrase. It is difficult to see how anything original in each of these two different phrases could be distilled into the same four-note phrase in "Blurred Lines."
In any event, the Hook Phrase in the deposit copy lacks sufficient originality to be protected. Its sequence of four pitches, lasting 2.5 seconds, is common. For example, Beyoncé, Jennifer Hudson, and Anika Noni Rose memorably sang it to the lyrics, "We're your dreamgirls." See Henry Krieger & Tom Eyen, Dreamgirls measures 25-26 (Universal-Geffin Music 1981).
At most, three of the four pitches are the same,
3. Theme "X"
Theme X refers to another four-note melodic sequence. In the deposit copy, Theme X is sung to the lyrics "Fancy lady." In "Blurred Lines," it is first sung to the lyrics "If you can't hear." Like the Hook Phrase, Theme X is both unprotectable and objectively dissimilar in the two songs.
The harmonies accompanying Theme X also differ between "Got to Give It Up" and "Blurred Lines." Structurally, Theme X appears in completely different places in the two songs. In the deposit copy, it repeats several times in succession near the end of the piece. In "Blurred Lines," it is the very first line of verse near the beginning of the song and repeats periodically throughout the song.
B. Other Alleged Similarities
1. Keyboard Parts
Finell testified that the keyboard parts in "Got to Give It Up" (meaning the chords and their rhythms played over the bass line) had "many important similarities" to those in "Blurred Lines." However, there are no keyboard parts in the deposit copy. Finell explained that a lead sheet is essentially "musical shorthand for musicians," who "would understand how [the keyboard parts are] to be played." But because "[a] sound is protected by copyright law only when it is 'fixed in a tangible medium,' " Newton II ,
To the extent the chord indications sufficiently express the keyboard parts, there is no substantial similarity between the two works. "Blurred Lines" contains only two chords throughout the entire piece-an A chord and an E chord-that alternate every four measures. The deposit copy contains neither of these chords. The chords it does contain-A7, D7, E7, B7, Dm7, and Am7-change in a much more irregular pattern. For example, the first 16 measures have a sustained A7 harmony, and the next 8 measures change harmonies every measure.
2. Bass Line
Finell opined that the bass melodies in "Got to Give It Up" and "Blurred Lines" are similar. However, when comparing them, she showed the jury the version of the "Got to Give It Up" bass line that she had transcribed from the sound recording. Because several notes were different in the deposit copy, her testimony on this issue was of questionable value. See Newton II ,
Even assuming the implied bass line in the deposit copy is sufficiently fixed, it's the type of expression that is so standard in the genre that it merges with the idea and is therefore unprotectable in and of itself. Cf. Shapiro, Bernstein & Co. v. Miracle Record Co. ,
The only similarity between the bass lines is that they repeat the note A in most of the measures. However, in "Got to Give It Up" the note is syncopated so that it sounds before the downbeat in the second, third, and fourth measures, whereas in "Blurred Lines" the note is played on the downbeat. Moreover, the note A is the root of the chord in each song (A7 in "Got to Give It Up," A in "Blurred Lines"). As the expert for Williams and Thicke testified without contradiction, it is commonplace for the root of a chord to appear in a bass line because it establishes the chord.
Notes
3. Word Painting, Parlando, and Lyrics
Word painting and parlando are common devices.
C. Overall Lack of Similarity
Even considering all of these individually unprotectable elements together, see Metcalf ,
The two pieces have different structures. Finell acknowledged that "Got to Give It Up" lacks a chorus whereas "Blurred Lines" has a "pretty common structure for a popular song" in that it consists of a verse, pre-chorus, and chorus. The two songs' harmonies share no chords.
The discrete elements identified by Finell don't occur at the same time within the musical theme or phrase in each piece. And with the exception of parlando, the various themes and phrases she identified don't occur in corresponding places in each piece. Thus, whether considered micro- or macroscopically, "Got to Give It Up" and "Blurred Lines" are objectively dissimilar. Williams and Thicke are entitled to judgment as a matter of law.
IV.
The majority insists that the verdict is supported by the evidence but tellingly refuses to explain what that evidence is. Instead, it defends its decision by arguing that a contrary result is impossible due to Williams and Thicke's purported procedural missteps. Maj. Op. at 1133-38. While the procedural mechanism for granting relief is beside the point given the majority's holding, there's no such obstacle here.
I agree that we normally are not at liberty to review the district court's denial of summary judgment after a full trial on the merits. See Ortiz v. Jordan ,
The majority conveniently ducks any review of the evidence by mischaracterizing the facts as "hotly disputed," Maj. Op. at 1134, and accusing me of "act[ing] as judge, jury, and executioner," id. at 1134, by "weigh[ing] the experts' credibility, resolv[ing] factual conflicts, and set[ting] forth [my] own findings on the extrinsic test," id. at 1136. But my "musicological exegesis," id. at 1134, concerns evidence of extrinsic similarity that Finell presented at trial. No one disputes that the two works share certain melodic snippets and other compositional elements that Finell identified. The only dispute regarding these similarities is their legal import-are the elements protectable, and are the similarities substantial enough to support liability for infringement? See Mattel ,
By characterizing these questions as a factual dispute among experts, the majority lays bare its misconception about the purpose of expert testimony in music infringement cases. As with any expert witness, a musicologist can't opine on legal conclusions, including the ultimate question here-substantial similarity. See Nationwide Transp. Fin. v. Cass Info. Sys., Inc. ,
This result would never stand in copyright cases involving works in other media. We "frequently" conclude as a matter of law that two works of language or visual art fail the extrinsic test for substantial similarity. Benay ,
V.
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.
Admittedly, it can be very challenging for judges untrained in music to parse two pieces of sheet music for extrinsic similarity. But however difficult this exercise, we cannot simply defer to the conclusions of experts about the ultimate finding of substantial similarity.
I respectfully dissent.
As an example, Williams and Thicke attempted to show the jury a video demonstrating how a common sequence of four chords serves as the harmonic backbone of innumerable songs. See Axis of Awesome, 4 Chord Song (with song titles) , YouTube (Dec. 10, 2009) https://www.youtube.com/watch?v=5pidokakU4I (singing 38 popular songs over the same chord progression, ranging from "Let It Be" by the Beatles to "If I Were a Boy" by Beyoncé). "Blurred Lines" employs only two chords-the first two from this sequence. The district court prevented the jury from hearing this evidence. However, the court allowed the jury to hear mashups of "Blurred Lines" played together with "Got to Give It Up," which the Gayes used to show that the two songs were harmonically similar.
The Copyright Act expressly protects each of these categories. See
Of course, these aren't the only elements through which a musical idea can be expressed in tangible form. See Swirsky ,
In musical notation, the notes signifying individual pitches are grouped into "measures" divided by vertical "bar" lines. Within a measure, the note immediately after the bar line, or "downbeat," receives the greatest emphasis.
Finell attempted to minimize the significance of the third note in "Blurred Lines" moving to a neighboring pitch rather than repeating. However, she previously testified that the neighboring pitch-a sharp second scale degree (indicated "#2" in her exhibit)-was a "broken rule" that "stands out." Thus, the most prominent note in the four-note sequence in "Blurred Lines" is the one that differs from the corresponding sequence in "Got to Give It Up."
There are only 123 or 1,728 unique combinations of three notes, and many of them are unlikely to be used in a song. See Darrell v. Joe Morris Music Co. ,
In "Got to Give It Up," the entire Signature Phrase is harmonized to an A7 chord. In "Blurred Lines," the first measure is harmonized to an E chord while the second measure is harmonized to an A chord. Seventh chords, such as A7, have the same three pitches as their underlying triads-here, an A chord-plus an additional pitch. See Copland, supra , at 66-67. Finell explained that the unique pitch in a seventh chord "add[s] an extra color" to the harmony.
The majority fundamentally misunderstands Swirsky on this point. See Maj. Op. at 1136-37. Swirsky did not hold that two works sharing multiple unprotected elements in disparate places are extrinsically similar. Were that the case, the entire Western canon would be extrinsically similar, since all of this music contains the same twelve individually unprotected notes. The difference between Swirsky and this case is that in Swirsky , there was a coincidence of the unprotected elements (chord progressions, rhythm, and pitch sequence) within each song that occurred at the same relative place (the chorus) in both. See Swirsky ,
Finell cited two examples of the Hook Phrase in "Blurred Lines," but they share only the last two pitches of their four- and five-note sequences. These two shared pitches are both tonic notes, which Finell described as "very common" in melodies.
Word painting is a compositional technique in which the music can be used to illustrate the words in the lyrics, such as setting the word "higher" to an ascending melody. Parlando is spoken word or rap in the middle of a song.
The majority surprisingly questions whether Escriba "survives" Ortiz . Maj. Op. at 1121-22. Since Ortiz expressly declined to decide whether there is an exception to the general rule for " 'purely legal' issues capable of resolution 'with reference only to undisputed facts,' "
In faulting my citation of unpublished cases, see Maj. Op. at 1135-36, the majority misses the point. That we choose not to publish many of our numerous cases deciding substantial similarity as a matter of law shows only how uncontroversial these decisions are when they concern non-musical works.
"Happy Birthday to You" was still copyright protected when Marvin Gaye wrote Theme X. See Eldred ,
Federal Rule of Evidence 706, which allows courts to appoint their own experts, may be useful in situations where the court has little musical expertise and the parties' experts deliver starkly different assessments of two works' similarity.