The highlights of the appellate decision were the conclusion from Circuit Judge Milan D. Smith Jr. that Gaye's song was entitled to broad protection and that the trial judge didn't abuse discretion in allowing certain testimony from plaintiff's music experts, which allegedly incorporated opinions about non-copyrighted elements. There was also discussion about defendants' failure to make a motion for judgment as a matter of law at trial — a technical procedural point, but an important one that the 9th Circuit determined limited its ability to change an outcome that some critics, including Judge Jacqueline Nguyen in a dissent, argued would chill musical creativity.
In voting to deny rehearing en banc, the 9th Circuit issues an amended opinion (read here), but it's largely the same as the one put forward months ago. The big change — if any — is the intriguing deletion of language on how the 9th Circuit adheres to the "inverse ratio rule," which means that the greater the access, the lesser the showing of substantial similarity is required. As applied to this case, because Marvin Gaye's song was so popular that access by Thicke and Williams was undisputed, the burden of proving substantial similarity was lowered accordingly. A paragraph on this topic has been removed from the majority opinion by Smith.
Thicke and Williams can attempt to petition the Supreme Court for review, but the high court only takes a small fraction of cases and usually ones presenting an appellate circuit split on interpretation of law. The "Blurred Lines" appeal turned on an evidentiary challenge rather than a big constitutional issue. Thus, it appears to be a huge long shot for the Supreme Court to take up this case, although amicus briefs may at least gather some attention from the justices.
"To say that this is satisfying would be the biggest understatement of my life," says Richard Busch, the attorney who represented the Gaye family. " This has been a long and winding road for the Gaye family and our entire team, in which we had to fight every step of the way. But we were up to the challenge every time, and justice has prevailed. As I said after the trial victory in this case, what is great about this country is that the rule of law prevails no matter who you are or how many friends you have that will support you. Nobody is above it. And this case is the prime example of that fact. I am so happy for Jan, and Nona, and Frankie, and Marvin IIII who did this for Marvin, one of the greatest who ever lived."
This article was originally published by The Hollywood Reporter.