Failure to make a trial motion for judgment as a matter of law precluded appellate consideration of whether elements additional to a musical style “transform the nature of the copyright claim” into a copyright-eligible application
- In Pharrell Williams v. Bridgeport Music, the Ninth Circuit Court of Appeals affirmed the district court’s judgment in a jury trial that the song “Blurred Lines” infringed defendant’s copyright in Marvin Gaye’s song “Got to Give It Up”
- A strong dissent by Judge Nguyen opined that “The majority allows the Gayes to accomplish what no one has before: copyright a musical style”
- The decision turned largely on procedural issues, since the parties failed to make an appropriate trial motion for judgment as a matter of law
On March 21, 2018, the Ninth Circuit Court of Appeals decided Pharrell Williams et al. v. Bridgeport Music, Court of Appeals Docket #: 16-55626. This is an appeal of Civil Action No. LA CV13-06004, (C.D. Cal. 2015), filed by Robin Thicke and Pharrell Williams (plaintiffs) seeking a declaratory judgment of non-infringement versus Marvin Gaye’s family (defendants).
The Ninth Circuit affirmed the district court’s judgment, ruling that plaintiffs’ song “Blurred Lines” infringed defendants’ copyright in Marvin Gaye’s song “Got To Give It Up.” The finding of a third party being secondarily liable for vicarious infringement was reversed.
Perhaps the Alice Two-Step Should Be Applied to a Copyright Case
In “Blurred Lines” Copyright Infringement, Marvin Gaye, Patent Preemption and a New Frontier in Copyright Litigation, we drew a parallel between the subject matter eligibility of a copyright and the subject matter eligibility of a patent.
The Alice Two-Step, derived from Supreme Court guidance on patent eligibility in CLS Bank v. Alice, is believed to be a relevant format for parsing this “Blurred Lines” copyright case.
Alice requires a determination, first, whether a patent claim recites a “patent-ineligible concept,” and second, if so, then considering the elements of the claim both individually and “as an ordered combination,” determining whether the additional elements “transform the nature of the claim” into a patent-eligible application.
Subject matter eligibility in “Blurred Lines” should require a determination first, whether the copyright claim covers “‘building blocks’ of creative artistry,” and if so, then considering the elements of the claim both individually and “as an ordered combination” a determination whether the additional elements “transform the nature of the claim” into a copyright-eligible application.
Once the non-protected layers of sound are stripped away from the Marvin Gaye recording, the remaining layers of sounds appear to be “building blocks” of creative artistry and so are not eligible for copyright protection. We may never know the answer to this question in the Marvin Gaye case since this issue does not appear to have been raised at the trial level. But posing this question in future copyright cases may provide answers to how courts should deal with layers of music that serve as “building blocks” of creative artistry.
Our assertion that the Marvin Gaye copyright is not eligible for copyright protection because it is a claim to “building blocks” of creative artistry was echoed on appeal in a strong dissent by Judge Nguyen who wrote “The majority allows the Gayes to accomplish what no one has before: copyright a musical style.” Op. at 57.
Unforced Errors in Litigation
It is possible that the Marvin Gaye appeal may still be heard by an en banc panel or even the U.S. Supreme Court. It is certainly an important case since this appellate decision has effectively allowed a rhythm and vibe to be copyright protected; something that a vast segment of pop musicians appear to rely upon in writing their own music.
In our blog on the trial decision, we noted how confounding this case is to unravel. Even if they wanted to, the Ninth Circuit Court of Appeals opined that they couldn’t go there. Both the Thicke Parties, and the Gayes, failed to make a Rule 50(a) motion for judgment as a matter of law at trial. As the Ninth Circuit observed, “Their failure to do so “precludes consideration of a Rule 50(b) motion for judgment as a matter of law.” Op. 48.
We published in Apple v. Samsung: How Things Can And Do Go Awry in Patent Litigation that litigation cases do, in fact, go awry. The failure of the parties in “Blurred Lines” to move for judgment as a matter of law is a striking example.
The appellate decision can be found at Pharrell Williams, et al v. Frankie Gaye, et al, Court of Appeals Docket #: 16-55626.
The trial decision can be found at Pharrell Williams et al. v. Bridgeport Music, Civil Action No. LA CV13-06004, (C.D. Cal. 2015).