In a 2-1 decision, the 9th Circuit recently upheld one of the most controversial copyright infringement cases. The case involves the hit song “Blurred Lines” written by Pharrell Williams and Robin Thicke and whether it infringed the hit song “Got To Give It Up” written by Marvin Gaye. The case is controversial because it raises concerns about whether being inspired by a song isequivalent to infringing that song. Specifically, as stated by an amicus filed in the 9th Circuit by 200+ songwriters and composers,
The verdict in this case threatens to punish songwriters for creating new music that is inspired by prior works. All music shares inspiration from prior musical works, especially within a particular musical genre. By eliminating any meaningful standard for drawing the line between permissible inspiration and unlawful copying, the judgment is certain to stifle creativity and impede the creative process. The law should provide clearer rules so that songwriters can know when the line is crossed, or at least where the line is. (emphasis in original)
Critics of the jury verdict at the district court claimed the Williams and Thicke were found to have infringed not one particular song written by Gaye, but rather Gaye’s style of music. According to the Majority, part of the problem may be 9th Circuit precedent regarding the relationship between “access” and “similarity.” According to the Majority,
Access and substantial similarity are “inextricably linked.” Id. at 485. We adhere to the “inverse ratio rule,” which operates like a sliding scale: The greater the showing of access, the lesser the showing of substantial similarity is required.6 See Swirsky, 376 F.3d at 844; Three Boys Music, 212 F.3d at 485. Williams and Thicke readily admitted at trial that they had a high degree of access to “Got To Give It Up.” The Gayes’ burden of proof of substantial similarity is lowered accordingly.
Because Williams and Thicke readily admitted not just to “access” to “Got To Give It Up,” but also inspiration from it, the Majority reasoned the “inverse ratio rule provides that the stronger the showing of access, the lesser the showing of substantial similarity is required.”
Although there was much contemporaneous commentary regarding how the district court managed the evidence at trial, the Majority focuses primarily on the procedural issues presented on appeal.
For example, the Majority notes that it cannot review the denial of a summary judgment motion after a full trial on the merits. “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, 562 U.S. 180, 183–84 (2011).”
In addition, the Majority states that Williams and Thicke’s decision at the end of trial in the district court not to file a motion for judgement as a matter of law (JMOL) under FRCP 50 precludes the appellate court from making such an award on appeal.
[W]hen we stitch together Rule 50’s requirements with our case law, we are left with this result: Because “a post-verdict motion under Rule 50(b) is an absolute prerequisite to any appeal based on insufficiency of the evidence,” id. at 1089, and because a Rule 50(a) motion is, in turn, a prerequisite for a Rule 50(b) motion, see Tortu, 556 F.3d at 1081–83, an advocate’s failure to comply with Rule 50’s requirements gives us serious pause, and compels us to heighten the level of deference we apply on appeal. [FRCP 50 is copied below for ease of reference.]
Taken together, the Majority states its hands are tied, reasoning that it has no authority “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.”
In its conclusion, the Majority pushes back on the idea that its decision will “punish songwriters for creating new music that is inspired by prior works,” taking the opportunity to assign the blame on Williams and Thicke’s trial counsel.
Our decision does not grant license to copyright a musical style or “groove.” Nor does it upset the balance Congress struck between the freedom of artistic expression, on the one hand, and copyright protection of the fruits of that expression, on the other hand. Rather, our decision hinges on settled procedural principles and the limited nature of our appellate review, dictated by the particular posture of this case and controlling copyright law. Far from heralding the end of musical creativity as we know it, our decision, even construed broadly, reads more accurately as a cautionary tale for future trial counsel wishing to maximize their odds of success.
The 9th Circuit’s decision is below:
Pharrell Williams v Marvin Gaye (Blurred Lines 9th Cir. 3-21-18) by Christopher S. Harrison on Scribd
Rule 50. Judgment as a Matter of Law in a Jury Trial; Related Motion for a New Trial; Conditional Ruling
(a) Judgment as a Matter of Law.
(1) In General. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.
(2) Motion. A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment.
(b) Renewing the Motion After Trial; Alternative Motion for a New Trial. If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court’s later deciding the legal questions raised by the motion. No later than 28 days after the entry of judgment—or if the motion addresses a jury issue not decided by a verdict, no later than 28 days after the jury was discharged—the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59. In ruling on the renewed motion, the court may:
(1) allow judgment on the verdict, if the jury returned a verdict;
(2) order a new trial; or
(3) direct the entry of judgment as a matter of law.
(c) Granting the Renewed Motion; Conditional Ruling on a Motion for a New Trial.
(1) In General. If the court grants a renewed motion for judgment as a matter of law, it must also conditionally rule on any motion for a new trial by determining whether a new trial should be granted if the judgment is later vacated or reversed. The court must state the grounds for conditionally granting or denying the motion for a new trial.
(2) Effect of a Conditional Ruling. Conditionally granting the motion for a new trial does not affect the judgment’s finality; if the judgment is reversed, the new trial must proceed unless the appellate court orders otherwise. If the motion for a new trial is conditionally denied, the appellee may assert error in that denial; if the judgment is reversed, the case must proceed as the appellate court orders.
(d) Time for a Losing Party’s New-Trial Motion. Any motion for a new trial under Rule 59 by a party against whom judgment as a matter of law is rendered must be filed no later than 28 days after the entry of the judgment.
(e) Denying the Motion for Judgment as a Matter of Law; Reversal on Appeal. If the court denies the motion for judgment as a matter of law, the prevailing party may, as appellee, assert grounds entitling it to a new trial should the appellate court conclude that the trial court erred in denying the motion. If the appellate court reverses the judgment, it may order a new trial, direct the trial court to determine whether a new trial should be granted, or direct the entry of judgment.