The "Blurred Lines" creators insist that when U.S. District Judge John Kronstadt took a look at the two songs and what the musicologists had to say before trial, he should have found there was no substantial similarity as a matter of law. Instead, the judge ruled that there was a triable issue.
Williams' camp believes that if one only examines the melody, lyrics and chords, filtering out the non-copyrighted percussion, keyboard parts, backup vocals and bass lines, the outcome should be different,.
"What happened instead was a cascade of legal errors warranting this Court’s reversal or vacatur for new trial," states the opening appellate brief. "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. 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."
As a result of all of this, the "Blurred Lines" creators believe they got an unjust result — one that has caused such concern in the musical community. Had the judge been more stern in not letting the non-protectable elements into the trial in any way, Williams and Thicke suggest they would have escaped a finding of copyright infringement. In fact, in a footnote, the appellants point to what happened in the recent case involving creation of Led Zeppelin's "Stairway to Heaven."
"The importance of instructions that correctly filter out unprotected elements in popular music cases is illustrated by the jury’s non-infringement verdict in the recent case involving Led Zeppelin’s song 'Stairway to Heaven,'" argues the brief. "There, unlike here, the district court identified specific musical elements that were not protected by the plaintiff’s copyright (e.g., 'descending chromatic scales, arpeggios or short sequences of three notes'), and directed the jury to 'disregard' such elements in assessing similarity."
One of the objectionable jury instructions at the "Blurred Lines" trial, say the appellants, was the judge's allowance of a finding of infringement based on "subconscious copying" by Williams and Thicke. Although the appeal doesn't mention the case, George Harrison was famously ruled to have subconsciously plagiarized The Chiffons' "He's So Fine" to create "My Sweet Lord." At the "Blurred Lines" trial, perhaps because of this opening, there was focus on whether Williams and Thicke went into the studio thinking about Marvin Gaye with some sort of intent to copy, but the "Blurred Lines" artists argue on appeal that this "subconscious" directive was erroneous given the limitations on what was really protectable.
If the "Blurred Lines" creators can't get the 9th Circuit to reverse (and challenging a trial verdict is always an uphill climb), they at least want the appeals court to do something about the millions of dollars awarded in this case. They contend that the award of actual damages and profits is not supported by competent evidence nor should they be forced to pay an ongoing royalty rate. On the latter front, they say that the district court premised this award on "the same hypothetical license negotiation that it held supported the jury's actual damages award," but argue that it's excessive and should be reduced to no more than five percent of future publishing revenues.
Find the entire brief below.
The Gaye family will soon have their own opportunity to weigh in and likely will present a different story about the judge's limitation of opinions and evidence related to elements found on the sound recording. The appeals process will also provide others with interest in this case — perhaps record labels and other musicians — an opportunity to weigh in with amicus briefs.