On March 21, 2018, the U.S. Court of Appeals for the Ninth Circuit upheld a jury verdict finding that Robin Thicke’s “Blurred Lines” infringed upon Marvin Gaye’s “Got to Give It Up.” This landmark, controversial case has shifted the paradigm of music and related entertainment, and we believe, will lead to a rise in copyright infringement litigation.

In June 2012, entertainers Robin Thicke and Pharrell Williams along with Clifford Harris, Jr. (a/k/a “T.I.”) wrote and recorded “Blurred Lines,” which became 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,” with Universal Music as the distributor. Soon thereafter, the heirs of Marvin Gaye made an infringement demand on Thicke and Williams after hearing “Blurred Lines,” finding it to be similar to Marvin Gaye’s “Got to Give It Up” song from 1977. In turn, Thicke, Williams and Harris filed suit for a declaratory judgment of non-infringement on August 15, 2013. The Gaye family then counterclaimed for copyright infringement, adding the record label and music distributor.

In 2015, after a seven-day trial, a jury sided with the Gaye family and awarded them $5.3 million as against Thicke and Williams. The Gaye family’s music expert testified that the songs share many similarities, including the bass lines, keyboard parts, signature phrases, hooks, bass melodies, word painting, and the placement of the rap and “parlando” sections in the two songs. The expert opined that nearly every bar of “Blurred Lines” contains an element similar to “Got To Give It Up.” Also key to the jury’s verdict was the testimony of Thicke and Williams, each of whom acknowledged inspiration from Marvin Gaye and access to “Got To Give It Up.” Most notable to the frustration of many copyright experts was the court’s determination that the commercial sound recording of “Got To Give It Up” was not allowed to be played at trial. Harris, Interscope and Universal Music were not found liable, but the district court set aside the verdict that had favored them.

To no surprise, the “Blurred Lines” parties appealed, asking the Ninth Circuit to reverse the jury verdict against Thicke and Williams as it was against the weight of the evidence presented at trial. Harris and the record companies also appealed the district court’s decision to set aside the jury’s finding based on the Gaye family’s failure to prove secondarily liable for vicarious infringement.

In a 2-1 vote, the Ninth Circuit affirmed the jury verdicts of Thicke and Williams. Procedurally, the majority acknowledged the general reluctance in disturbing a jury’s findings on appeal, especially since determining the “intrinsic test” of a copyright infringement claim is a question of fact. Substantively, the court found persuasive the expert testimony of the Gaye family, which concluded that nearly every bar of “Blurred Lines” contains an area of similarity to “Got To Give It Up.” Moreover, it was also not necessary that Thicke or Williams had consciously or deliberately copied “Got To Give It Up.” The majority noted that scienter or intent is not a requirement in proving copyright infringement; having “subconsciously copied” was sufficient. The majority turned almost entirely on questions of procedure, relying on appellate deference to avoid much substantive copyright law. Based on the same logic, the majority found that the court erred in wrongfully setting aside the jury’s finding of no liability as against Harris, Interscope and Universal Music.

The kind of substantive analysis that some copyright experts hoped for was left to a dissenting opinion from Judge Nguyen, who disagreed with the majority for “refusing to compare” two works that were simply “not objectively similar.” In her dissent, she wrote “[t]the majority allows the Gayes to accomplish what no one has before: copyright a musical style.” Further, Judge Nguyen reasoned that the two songs were “not objectively similar. They differ in melody, harmony, and rhythm. Yet by refusing to compare the two works, the majority establishes a dangerous precedent that strikes a devastating blow to future musicians and composers everywhere.” To this end, Thicke and Williams argued that copyright claims 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,” their brief asserted.

Given the Ninth Circuit’s ruling, the line between musical inspiration and style versus copying of music in entertainment is likely more blurred. There is some debate as to whether the Ninth Circuit has now adopted a “musical style” theory of infringement.