By Eriq Gardner, The Hollywood Reporter
The best case scenario for the Gaye family is that the judge orders an injunction on the song, forcing the “Blurred Lines” artists to come to the negotiating table, where they’ll face demands for hefty ongoing license fees for using the Gaye hit. Additionally, the Gaye family wants the judge to extend liability to various Universal Music record companies, notwithstanding the jury’s decision to give them a pass. If the judge grants the Gayes’ motions, the penalty for copyright infringement will be climbing much higher than $7.4 million.
But the judge could go in an entirely different direction by trimming the jury’s damages award, or even better for the Williams’ camp, ordering up a new trial.
Attorneys for the “Blurred Lines” creators are pushing hard for the latter option by telling the judge on Friday that a do-over is warranted because of errors in jury instructions, improper testimony from a musicologist and insufficient evidence to support a finding that “Blurred Lines” is truly substantially similar to “Got to Give It Up.”
The motion for a new trial (read here) is built in large part on the judge’s pre-trial conclusion that the Gaye copyright for their hit 1977 song was limited to what was expressed by the lead sheet music. If elements like the “groove” of “Blurred Lines” weren’t to be considered by a jury, the Williams side asserts it was “prejudicial and irrelevant” for a jury to hear Thicke’s statements about his influence in creating the song as well as much of musicologist Judith Finell‘s opinion on the similarity of the sound recordings.
The point is a very technical one, but one that should be accorded special emphasis for those wishing to understand the dynamics that led to the jury’s headline-making decision. During the trial, the judge had to constantly dance with the implications of his earlier decision limiting the copyright to what was found in the sheet music. For instance, the judge wouldn’t allow the jury to hear the original “Got to Give It Up” sound recording — which made the Gaye family at first doubt they’d get a fair trial — before relaxing somewhat to allow a specially created stripped-down version to play.
Now, the Williams’ camp is unhappy about the “mash-up” that the jury heard — they say it still contained unprotected elements — but there appears to be a larger concern. During the trial, Williams’ side fought hard to hold the judge to his prior word that the Gaye copyright didn’t go beyond the sheet music. This was no more apparent than during Finell’s testimony, which produced a great number of objections from Williams’ lawyers.
What appeared to be the biggest advantage for Team Blurred Lines heading into the trial might have turned out otherwise. (See what Richard Busch, attorney for the Gayes, considers “the other side’s biggest mistake.”) Here’s how the motion for a new trial puts what happened during Finell’s testimony:
“Although many of Counter-Defendants’ objections were sustained and much of Ms. Finell’s testimony was stricken after it was given, the net effect of this cumbersome process was extremely prejudicial to Counter-Defendants: (1) the jury likely concluded that Counter-Defendants were overly concerned by Ms. Finell’s testimony or were desiring to obstruct and delay the proceedings; (2) Ms. Finell was able to present to the jury testimony, demonstratives, and music that the jury never should have seen or heard; and, (3) the jury faced an impossible task of having to constantly distinguish between the select parts of what they saw and heard each day that they could consider later in reaching their verdict, and the parts they could not.”
The Williams’ camp wants the judge to go back over the evidence and find that what was in play doesn’t support the verdict. They believe the jury was pushed into its decision with confusing instructions.
And if that argument fails, they want to at least do something about the $7.4 million damage award, which was comprised of $4 million in actual damages (related to lost licensing money for the Gaye family) and $3.4 million in non-publishing profits. The Williams’ camp believes the first was “grossly excessive and not supported by any admissible evidence” while the latter was also in error. They point out that the jury awarded twice as much as Williams got in profits while also turning back to the issue that “at most… only a small portion of the copyrighted musical expression of GIVE appears in BLURRED.”
Taking into account their own musicologist Sandy Wilbur‘s testimony that “the elements of GIVE claimed to have been copied amount to less than 5% of the BLURRED composition,” the Williams’ camp wants the profits awarded to be appropriately trimmed to no more than five percent of non-publishing profits. In other words, if Williams and Thicke can’t get a post-trial vindication nor a new trial, they want to slash the $7.4 million award to under $680,000.
Of course, the Gaye family has a different view.
In one motion (read here), the family argues that the jury shouldn’t have been asked to decide whether the record companies were liable for contributory and vicarious infringement. The family wants declaratory relief that Interscope Records, UMG Recordings and others should be held accountable.
In another motion (read here), the family wants to stop the continued distribution of “Blurred Lines” and impound works that contain the song. That might sound drastic, but here’s the argument:
“The Gayes emphasize that they do not seek to permanently prevent the exploitation of ‘Blurred Lines.’ Nobody wins if that occurs. Unfortunately, the Plaintiffs/Counter-Defendants have not responded to the Gayes’ request that the parties agree to reasonable steps to protect the Gayes’ rights and interests pending Plaintiffs/Counter-Defendants’ likely appeal, thus necessitating this motion. In the absence of injunctive relief, Plaintiffs/Counter Defendants will continue to infringe the Gayes’ rights.”
That’s the Gaye family’s big ask, but they also have an alternative request if this doesn’t occur and they can’t negotiate their cut of “Blurred Lines.” They want Williams and Thicke to hand over 50 percent of all future songwriter and publishing revenues generated by “Blurred Lines.”
Judge Kronstadt will consider these motions at an oral hearing scheduled on June 29. Until then, the two sides will be arguing back and forth on the points presented on Friday. Unless there’s a settlement, the judge’s forthcoming decision will hardly close the battle. Even if the judge refuses a new trial, the case will be going on appeal. The arguments being made now are as much a foreshadowing of the next stage as the current one. And while the litigation drags on and might fatigue observers, the case has already had a big impact on the industry — see what happened to this year’s biggest hit, “Uptown Funk,” as a prime example — so there’s enough at stake to keep this one moving for quite some time.