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In January, the Gayes’ attorneys asked to tack on almost $3.5 million in fees and expenses, which prompted Team Thicke to respond by questioning the “breathtaking” six-figure paycheck requested for musicologist Judith Finell.
Attorney for the Gayes, Richard Busch, argues their victory "encourages the meritorious prosecution of copyright claims" and not reimbursing the heirs for the costs of that pursuit would send a chilling message to others considering legal action over copyrights.
Busch also says not only did Team Thicke sue first but they also included a request for fees in that suit and "used the fees as a sword to try to coerce a knowingly financially vulnerable party into giving up."
"They gambled and they lost and they should pay the consequences for doing so," Busch says.
Thicke's attorney Howard King says the case was novel and "demarcated the boundaries of copyright law" and therefore a fee award is not appropriate.
In the highlight of the hearing, King admits why he thinks he lost the case at trial.
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"Robin Thicke committed probably the cardinal sin: He lied to Oprah," King says.
Busch later responded saying "that's a nice soundbite" but "they lost because they committed copyright infringement."
Both sides argue the outcome will affect future copyright litigation. Busch says if no fee is awarded then people with legitimate copyright claims will be hesitant to pursue them because of the extreme cost "even in victory." King says having to pay fees when you lose a legitimate, hard-fought case would also set a bad precedent.
Kronstadt says he will make his final decision on the fee award in writing.
This story originally appeared in The Hollywood Reporter.