UPDATE: A federal appeals court has upheld the verdict against Pharrell Williams and Robin Thicke brought by the family of Marvin Gaye over "Blurred Lines," according to Reuters. "The decision protects songwriters and encourages new songwriters to create original works themselves," the Gayes' lawyer Richard Busch said.
Pharrell Williams, Robin Thicke and T.I. (given name Clifford Harris Jr.) are disputing the verdict that their mega hit "Blurred Lines" was a copyright infringement, as The Hollywood Reporter notes. In an opening brief filed in the 9th Circuit Court of Appeals, they seek to overturn the ruling that awarded $5.3 million in damages to Marvin Gaye's family as well as 50 percent of royalties from "Blurred Lines."
In the initial ruling, a Los Angeles jury determined that "Blurred Lines" essentially ripped off Marvin Gaye's 1977 hit "Got to Give It Up."
"This outcome created international press coverage and widespread expressions of concern by members of the music community that, if left to stand, the 'Blurred Lines' verdict would chill musical creativity and inhibit the process by which later artists draw inspiration from earlier artists to create new popular music," the brief states.
At issue, according to the new brief, is that sound recordings were not originally covered under federal law. The original Copyright Act of 1909 based copyrights on sheet music alone. The 1976 Copyright Act expanded to include sound recordings. However, Gaye's hit was penned after the latter Copyright Act modification.
The "Blurred Lines" writers assert that when the judge examined the two songs before the trial, he should have determined that the songs were different if he went by the sheet music, i.e. Gaye's "deposit copy" submitted to the Copyright Office, per the law established when Gaye's song was created and what musicologists explained before trial. However, the judge ruled that the case was worthy of trial.
Subtract the non-copyrighted recorded percussion, keyboard parts, backup vocals and bass lines, and the appellants assert that the case should not have been tried.
"What happened instead was a cascade of legal errors warranting this Court’s reversal or vacatur for new trial," the opening appellate brief states. "At summary judgment, the district court entertained expert testimony by musicologists for the Gayes who based their opinions entirely on the sound recording, not the deposit copy. The court correctly filtered out non-deposit-copy and generic musical features from their testimony, but then erroneously failed to compare what remained to 'Blurred Lines.'
"At trial, the district court made things worse. While correctly excluding the 'Got to Give It Up' sound recording itself, the court erroneously allowed the Gayes’ experts to testify about the sound recording anyway, including by playing their own musical excerpts based on the sound recording," it continues. "The court then instructed the jury that it could consider all this testimony in its substantial-similarity analysis, failing to instruct them to consider only the protectable elements of the copyrighted work and indeed pointing them explicitly to elements omitted from the deposit copy."
They also cite the recent outcome in Led Zeppelin's "Stairway to Heaven" case, which ruled in favor of the band, in a footnote.
“For all these reasons, the judgment below should be reversed, or at a minimum, vacated and remanded for new trial,” the brief states.