One of the most critical pieces of disputed evidence is Gaye's "Got to Give It Up." Will the sound recording actually be played to the jury?
Naturally, in attempting to prove substantial similarity, attorneys for the Gaye family want the jury to hear the two songs (along with Gaye's "After the Dance" and Thicke's "Love After War"). That's precisely the sort of auditory evidence that has led many outside observers to find unmistakable traces of Gaye's song in Thicke's.
But it's not that simple because when U.S. District Judge John Kronstadt rejected summary judgment in the lawsuit, he ruled that the Gaye family hadn't sufficiently shown that the "Got to Give It Up" copyright encompassed "material other than that reflected in the lead sheets deposited with the Copyright Office." The reasons why Gaye's copyright may not go further than sheet music is technical, but has to do with old standards under the 1909 Copyright Act.
Regardless, to have "Got to Give It Up" played to the jury would be in the opinion of Pharrell Williams' camp, "unduly prejudicial, likely to confuse the issues, and likely to mislead the jury because numerous elements in the sound recordings.... are not found in the Deposit Copy and hence are not probative of copying."
In other words, if "Blurred Lines" and "Got to Give It Up" share similarities in percussive choices or backup vocals, it's not relevant because those elements are not found in the sheet music. The lawsuit is now about whether Gaye's composition was infringed, and if the jury isn't sophisticated enough to read sheet music, Howard King and Seth Miller, attorneys for Williams and Thicke, have a proposal. In their brief, they write that the "composition can be fully played on a keyboard."
That would be terribly unsatisfying, though, to anybody who wishes to hear Gaye's silky voice. And Richard Busch, attorney for the Gayes, isn't about to give it up.
"The musical composition 'Got to Give it Up' was created simultaneously as it was being recorded," Busch writes in his own brief. "Thus, the musical composition of 'Got to Give it Up' in total is embodied in the sound recording. Therefore, the sound recording is the best evidence for what is included under the intrinsic test."
As noted earlier in the case, the Gayes had audio engineers create an audio mash-up of the two songs which they believe is quite convincing.
But Pharrell Williams' camp tells the judge it's "the musicological equivalent of junk science," and again prejudicial.
Interestingly, the use of an audio mash-up could cut both ways. By having "Blurred Lines" play side-by-side with other soul-funk gems like War's "Low Rider," Curtis Mayfield's "Superfly" or Lipps Inc.'s "Funkytown," King could attempt to show that the Gaye family is trying to impermissibly claim rights to an entire genre of music. Busch doesn't want that. He is also seeking to exclude the other side's mash-up.
The parties are also attempting to knock out each others' expert witnesses -- a standard gambit in litigation -- but there's other fights on the eve of trial.
For instance, remember how the Gaye family once sued EMI for allegedly breaching its fiduciary duty by failing to protect Gaye's songs on "Blurred Lines"? Yes, that dispute was settled, but there's still the issue of why it was that EMI concluded that it would not assert claims on behalf of Gaye.
The Gaye family doesn't want a jury to hear the opinions of EMI executives and the musicologists the publisher retained. According to the Gayes, "This is not relevant, no probative value, prejudicial, distracting to the jury, and they [EMI] have a conflict of interest because "Blurred Lines," which they own, is their 'golden goose' and Williams is one of their writers."
Not last and least, there's the now infamous deposition where Thicke admitted drug use and lying to the media about the creation of "Blurred Lines." His attorney wants much of this precluded as irrelevant and prejudicial and states that Thicke's comments to the press about being inspired by Gaye doesn't mean much since they stipulate to the fact that the singer had access to the song.
The Gaye camp isn't about to let this go, though. The family believes that inconsistent comments are "probative of credibility" and that "Thicke has never explained his absolutely contradictory sworn and verified interrogatory responses served in this case."
In short, don't be surprised to see Busch try to impeach Thicke on the witness stand.
With just weeks to go until the trial spectacle, there are still many things that are still not very clear about this trial. Besides what evidence will be allowed to be introduced, there's also the issue of damages should a jury decide that "Blurred Lines" is a rip-off of "Got to Give It Up."
The Gaye family will likely seek as much as they can get -- profits and statutory damages -- while Williams and Thicke hope to limit potential damages to the value of the license fee they would have paid for the Gaye songs. Neither side has come forth just yet with a precise dollar figure, but in the weeks ahead, as both sides argue over the value of their proposed expert witnesses, some clarity on this front could be forthcoming. Stay tuned.
This article was originally publishe by The Hollywood Reporter.