Monday, May 1, 2017

New Blurred Lines Appeal Argues: Artists Can't Copyright a Groove

Written by Ashley Cullins — Lines have been drawn in the copyright battle between Marvin Gaye's heirs and artists Pharrell Williams and Robin Thicke -- and they certainly aren't blurred.

Since Williams and Thicke appealed their 2015 trial loss, in which a jury found their "Blurred Lines" infringed upon Gaye's "Got to Give It Up," scores of musicians and songwriters have pledged their support to one side or the other.

Now, in the latest filing, attorneys for the duo are asking the 9th Circuit to determine whether a "groove" is protectable and if a judge should have ended this fight himself instead of sending it to a jury.

"[T]he two songs in this case are not the same, and the district court should have granted summary judgment," states the brief filed Monday. "Rather than address the fatal flaws in their musicology evidence, the Gayes attempt to distract the court with irrelevant issues and assert a copyright in musical elements beyond those found in their copyrighted work, which is the lead sheet (and not the sound recording) to Marvin Gaye’s musical composition 'Got To Give It Up.'"

Specifically, Williams and Thicke take issue with the implication that copyrights would preclude artists like them from being inspired by someone else's work. "A 'groove' or 'feeling' cannot be copyrighted, and inspiration is not copying," she writes.

One of the central issues in the appeal is whether U.S. District Judge John Kronstadt erred in his decision that the jury couldn't hear the original sound recording of Gaye's song, but that it was appropriate for it to hear a version that was stripped of anything not expressed in the sheet music. At the time the work was created, the U.S. Copyright Office only accepted written notation as a deposit copy when a registration was filed.

The Gayes argue that the decision to ban the original sound recording favored Thicke and Williams — who argue that Kronstadt was correct to bar the recording but erred in allowing the music experts to testify about it.

Using only Gaye's lead sheet for comparison, Williams and Thicke say it's clear the works are not substantially similar — and they should have prevailed on summary judgment.

"The district court erred in holding that the issue of substantial similarity was for the jury just because the musicology experts presented conflicting opinions," states the brief. "Under the district court’s approach, musical composition cases would enjoy special immunity from summary judgment determinations merely because the parties offer competing musicology experts."

Williams and Thicke are asking the 9th Circuit to either reverse the judgment or vacate it and remand the case back down to the lower court for a new trial. The full brief is posted on The Hollywood Reporter.

Click here to read the full brief.

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