Williams v. Gaye

895 F.3d 1106

Pharrell WILLIAMS, an individual; Clifford Harris, Jr., an individual; Robin Thicke, an individual, DBA I Like'em Thicke Music, Plaintiffs–Counter-Defendants–Appellants,

and

More Water From Nazareth Publishing, Inc.; Star Trak Entertainment ; Interscope Records; UMG Recordings, Inc.; Universal Music Distribution, Counter-Defendants–Appellants,

v.Frankie Christian GAYE, an individual; Marvin Gaye III, an individual; Nona Marvisa Gaye, an individual, Defendants–Counter-Claimants–Appellees.

Pharrell Williams, an individual; Clifford Harris, Jr., an individual; Robin Thicke, an individual, DBA I Like'em Thicke Music, Plaintiffs–Counter-Defendants–Appellees,

and

More Water From Nazareth Publishing, Inc.; Star Trak Entertainment ; Interscope Records; UMG Recordings, Inc.; Universal Music Distribution, Counter-Defendants–Appellees,

v.Frankie Christian Gaye, an individual; Marvin Gaye III, an individual; Nona Marvisa Gaye, an individual, Defendants–Counter-Claimants–Appellants.

Pharrell Williams, an individual; Robin Thicke, an individual, DBA I Like'em Thicke Music; Clifford Harris, Jr., an individual, Plaintiffs–Counter-Defendants–Appellees,

and

More Water From Nazareth Publishing, Inc.; Star Trak Entertainment ; Interscope Records; UMG Recordings, Inc.; Universal Music Distribution, Counter-Defendants–Appellees.

v.Frankie Christian Gaye, an individual; Marvin Gaye III, an individual; Nona Marvisa Gaye, an individual, Defendants–Counter-Claimants–Appellants.

No. 15-56880

No. 16-55089

No. 16-55626

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 6, 2017 Pasadena, California

Filed March 21, 2018

Amended July 11, 2018

Kathleen M. Sullivan (argued) and Ellyde R. Thompson, Quinn Emanuel Urquhart & Sullivan LLP, New York, New York; Daniel C. Posner, Quinn Emanuel Urquhart & Sullivan LLP, Los Angeles, California; Howard E. King, Stephen D. Rothschild, and Seth Miller, King Holmes Paterno & Soriano LLP, Los Angeles, California; for Plaintiffs–Appellants/Cross–Appellees Pharrell Williams, Clifford Harris Jr., Robin Thicke, and More Water from Nazareth Publishing Inc.

Mark E. Haddad (argued), Amanda R. Farfel, Michelle B. Goodman, Rollin A. Ransom, and Peter I. Ostroff, Sidley Austin LLP, Los Angeles, California, for Defendants–Appellants/Cross–Appellees Star Trak Entertainment, Interscope Records, UMG Recordings Inc., Universal Music Distribution.

Lisa Blatt (argued), Arnold & Porter LLP, Washington, D.C.; Richard S. Busch (argued), Sara R. Ellis, and Steven C. Douse, King & Ballow, Nashville, Tennessee; Daniel B. Asimow and Martin R. Glick, Arnold & Porter LLP, San Francisco, California; Paul H. Duvall, King & Ballow, Century City, California; Mark L. Block, Wargo & French LLP, Los Angeles, California; Paul N. Philips, Law Offices of Paul N. Philips APLC, Beverly Hills, California; for Defendants–Appellees/Cross–Appellants Frankie Christian Gaye, Marvin Gaye III, and Nona Marvisa Gaye.

Kenneth D. Freundlich, Freundlich Law, Encino, California, for Amici Curiae Musicologists.

Edwin F. McPherson, McPherson Rane LLP, Los Angeles, California, for Amici Curiae 212 Songwriters, Composers, Musicians, and Producers.

Charles Duan, Public Knowledge, Washington, D.C., for Amicus Curiae Public Knowledge.

Sean M. O'Connor, Lateef Mtima, and Steven D. Jamar, Institute for Intellectual Property and Social Justice Inc., Rockville, Maryland, for Amicus Curiae Institute for Intellectual Property and Social Justice; Musicians and Composers; and Law, Music, and Business Professors.

Bernard A. Burk, Director, Lawyering Skills Program, William H. Bowen School of Law, University of Arkansas at Little Rock, Little Rock, Arkansas; Howard Barry Abrams, University of Detroit Mercy School of Law, Detroit, Michigan; for Amici Curiae Musicologists.

Eugene Volokh, Mayer Brown LLP, Los Angeles, California; Erich C. Carey and Danielle M. Aguirre, National Music Publishers' Association, Washington, D.C.; for Amici Curiae Recording Industry Association of America and National Music Publishers' Association.

Before: MILAN D. SMITH, JR., MARY H. MURGUIA, and JACQUELINE H. NGUYEN, Circuit Judges.

Dissent by Judge Nguyen

ORDER

The opinion and dissent filed March 21, 2018, and reported at 885 F.3d 1150, are hereby amended. The amended opinion and dissent will be filed concurrently with this order.

Judges M. Smith and Murguia voted to deny the petition for rehearing en banc. Judge Nguyen voted to grant it. The full court has been advised of the petition for rehearing en banc, and no judge requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing en banc, filed April 11, 2018, is DENIED.

No further petitions for panel rehearing or rehearing en banc will be entertained in this case.

M. SMITH, Circuit Judge:

After a seven-day trial and two days of deliberation, a jury found that Pharrell Williams, Robin Thicke, and Clifford Harris, Jr.'s song "Blurred Lines," the world's best-selling single in 2013, infringed Frankie Christian Gaye, Nona Marvisa Gaye, and Marvin Gaye III's copyright in Marvin Gaye's 1977 hit song "Got To Give It Up." Three consolidated appeals followed.

Appellants and Cross-Appellees Williams, Thicke, Harris, and More Water from Nazareth Publishing, Inc. (collectively, Thicke Parties) appeal from the district court's judgment. They urge us to reverse the district court's denial of their motion for summary judgment and direct the district court to enter judgment in their favor. In the alternative, they ask us to vacate the judgment and remand the case for a new trial, on grounds of instructional error, improper admission of expert testimony, and lack of evidence supporting the verdict. If a new trial is not ordered, they request that we reverse or vacate the jury's awards of actual damages and infringer's profits, and the district court's imposition of a running royalty. Finally, they seek reversal of the judgment against Harris, challenging the district court's decision to overturn the jury's general verdict finding in Harris's favor.

Appellants and Cross-Appellees Interscope Records, UMG Recordings, Inc., Universal Music Distribution, and Star Trak, LLC (collectively, Interscope Parties) appeal from the district court's judgment. They urge us to reverse the judgment against them, challenging the district court's decision to overturn the jury's general verdict finding in their favor.

Appellees and Cross-Appellants Frankie Christian Gaye, Nona Marvisa Gaye, and Marvin Gaye III (collectively, Gayes) appeal from the district court's order on attorney's fees and costs. They request that we vacate and remand for reconsideration the district court's denial of attorney's fees, and award them their costs in full. The Gayes also protectively cross-appeal the district court's ruling limiting the scope of the Gayes' compositional copyright to the four corners of the sheet music deposited with the United States Copyright Office. In the event a new trial is ordered, the Gayes urge us to hold that Marvin Gaye's studio recording of "Got To Give It Up," rather than the deposit copy, establishes the scope of the Gayes' copyright under the Copyright Act of 1909.

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Our law requires that we review this case, which proceeded to a full trial on the merits in the district court, under deferential standards of review. We accordingly decide this case on narrow grounds, and affirm in part and reverse in part.

FACTUAL AND PROCEDURAL BACKGROUND

A. "Got To Give It Up"

In 1976, Marvin Gaye recorded the song "Got To Give It Up" in his studio. "Got To Give It Up" reached number one on Billboard's Hot 100 chart in 1977, and remains popular today.

In 1977, Jobete Music Company, Inc. registered "Got To Give It Up" with the United States Copyright Office and deposited six pages of handwritten sheet music attributing the song's words and music to Marvin Gaye. Marvin Gaye did not write or fluently read sheet music, and did not prepare the deposit copy. Instead, an unidentified transcriber notated the sheet music after Marvin Gaye recorded "Got To Give It Up."

The Gayes inherited the copyrights in Marvin Gaye's musical compositions.

B. "Blurred Lines"

In June 2012, Pharrell Williams and Robin Thicke wrote and recorded "Blurred Lines." Clifford Harris, Jr., known popularly as T.I., separately wrote and recorded a rap verse for "Blurred Lines" that was added to the track seven months later. "Blurred Lines" was the best-selling single in the world in 2013.

Thicke, Williams, and Harris co-own the musical composition copyright in "Blurred Lines." Star Trak and Interscope Records co-own the sound recording of "Blurred Lines." Universal Music Distribution manufactured and distributed "Blurred Lines."

C. The Action

The Gayes made an infringement demand on Williams and Thicke after hearing "Blurred Lines." Negotiations failed, prompting Williams, Thicke, and Harris to file suit for a declaratory judgment of non-infringement on August 15, 2013.

The Gayes counterclaimed against the Thicke Parties, alleging that "Blurred Lines" infringed their copyright in "Got To Give It Up,"¹ and added the Interscope Parties as third-party defendants.

D. The District Court's Denial of Summary Judgment

The district court denied Williams and Thicke's motion for summary judgment on October 30, 2014.

1. The District Court's Interpretation of the Copyright Act of 1909

The district court ruled that the Gayes' compositional copyright, which is governed by the Copyright Act of 1909, did not extend to the commercial sound recording of "Got To Give It Up," and protected only the sheet music deposited with the Copyright Office. The district court accordingly limited its review of the evidence to the deposit copy, and concluded there were genuine issues of material fact.

2. The Evidence

The Thicke Parties relied upon the opinion of musicologist Sandy Wilbur. The Gayes relied upon the opinions of Dr. Ingrid Monson, the...