In the Thicke of Things: Reprise – THE VERDICT: THEY’VE “GOT TO GIVE IT UP”

[a] bass line has never been considered part of a composition’s copyright.” You can read Moses’ article here on his website.  I generally find Moses’ articles and newsletters to be entertaining and informative, and always applaud the efforts of a fellow member of the community who makes great strides in communicating with the public as he does.  I must say, however, that I disagree with Moses’ assessment of the outcome in this case as well as with his characterization of it as based on a “sound.”  He is also wrong about bass lines, by the way, but more on that later.  I will say that the one thing Avalon did say in the referenced article that is correct is his conclusion that the only group of people “in the world [who] can tell you if you stole a song— [is] called a civil jury.”  So that’s where we’ll begin.

In regard to jury trials, this is one area of the law where “lay people,” i.e., people who are not lawyers, get confused when it comes to verdicts like this one, perhaps as a result of watching too many episodes of Law & Order, Boston Legal (for the Shatner/Spader fans)  or L.A. Law  (for those who go as far back as I do).  Real jury verdicts are not generally based on emotions and drama, but rather on a particular set of (sometime mundane) facts, introduced into evidence through witnesses, whose credibility and reliability are evaluated by those jurors in the deliberation.  So, before someone criticizes a jury’s verdict for being based on “the legacy of a beloved artist [such as] Marvin Gaye,” as Mr. Avalon did here, it would be beneficial to review the evidence that was submitted to that jury and try to get into their minds to determine how they arrived at that decision.

Not to belabor this point, but in a jury trial, the jury evaluates the fact and the judge rules on the law.  As for copyright infringement cases, not to oversimplify it, the plaintiff must offer evidence that proves the following: (1) that he/she is the copyright owner; (2) that the alleged infringer had access to the work; and (3) that protected elements of the original work were misappropriated. These elements would be presented to the jury at the beginning and end of a trial, in the form of jury instructions from the judge, and they would make a determination as to whether the facts support these elements.  Of course, as an aside, there are many related elements contained within those prongs, such as whether the works are “substantially similar,” or whether the two works were created independently, or whether the similarities are based on basic building blocks, i..e., elements that cannot be protected by copyright.  Apparently, the latter defense is what swayed Avalon to come down on the side of Thicke/Williams.  Moses believes that the jury verdict was based on a mere “bass line” and rhythm, which are ostensibly only building blocks and can never be protected. But this assessment would be incorrect:  there are times when these elements meld into the melody and/or become distinctive enough, as the experts here testified they did.  For example, in the seminal case involving parody, Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), the Supreme Court spent a great deal of the opinion discussing the “characteristic” bass line of Pretty Woman, describing it as the “heart” of the song, and on remand ask the lower court to retry the issue of whether too much of the bass line was used to achieve the transformative purpose of the parody (ultimately, Acuff-Rose licensed the song to 2 Live Crew in a settlement).  In the case at hand, there was testimony from an expert witness that the bass line from the Marvin Gaye song was an unusual variety in Motown music and very characteristic of Gaye’s style.

But before we delve too deeply into the evidence presented to the jury, there is another aspect of the Thicke case that is often mischaracterized by bloggers, media and press.  Many imply or even report that it was the Gaye family who started this litigation.  Let clear that up:  this is not an infringement action filed by the Gaye family, but rather this case was filed by Robin Thicke and Pharrell Williams, among others, against Marvin Gaye’s estate, not the other way around.  In a somewhat aggressive move by their flamboyant California lawyer Howard King, they filed a preemptive action for declaratory relief, asking the court to declare that they song was not an infringement.  At the very least, this move was risky – as can be seen from the outcome – and at worst, it was arrogantly misguided. This “strategic” move, perhaps inspired by the Gaye family’s inquiry to its publisher after reading Thicke’s comments on the song, has also been hotly debated in the blogs and on the Internet as well:

Robert Jacobs, co-chair of entertainment & media at Manatt, Phelps & Phillips, had this to say about the declaratory judgment:

The move could have been precedent setting if Thicke and Williams had prevailed, then other songwriters and lawyers may have started using the pre-emptive lawsuit as a strategy to push back on spurious claims.

This “pre-emptive” strategy is reminds me of the tactic employed by some lawyers using the procedures in F.R.C.P. Rule 11 involving frivolous lawsuits as an overtly offensive strategy to persuade their opponents to drop certain allegations in a case or various counts in the complaint.  This tactic has become commonplace in both State and Federal courts and is sometimes rewarded by more conservative judges.  Harvey Geller, with the Los Angeles law firm of Gradstein & Marzano, agreed King’s unorthodox strategy here might be an interesting approach, but seriously questioned the strategy:

If they want to settle and you instead sue, you are guaranteeing yourself a long and nasty legal battle. It was a really odd procedural maneuver. When you sue somebody, the one thing you can practically guarantee is you will get a cross complaint.

My local home boy and fellow member of the Nashville bar Richard Busch, attorney for the Gaye family, agreed that the strategy backfired, saying:

I was surprised. When Robin Thicke and Pharrell Williams decided to launch a lawsuit seeking declaratory relief that “Blurred Lines” wasn’t a copyright infringement of Marvin Gaye’s “Got to Give It Up,” I didn’t know they’d do this. My opinion is that they believed the Gaye’s didn’t have resources and the wherewithal to fight. My belief then was they were being bullies. I bet now they regret it.”

So now that we have those strategic and political back stories aired, let’s examine the evidence presented to the jury.

Perhaps the most damning type of evidence in any case is an admission from the alleged perpetrator that he/she is guilty. This case is not an exception. Long before to the litigation arose and before the Gaye Estate was alerted to the similarities, Robin Thicke bragged in an interview in GQ magazine about how much of a fan he was of Marvin Gaye. In fact, the rumor was that Thicke had a “fixation” on Gaye. Thicke continued to pontificate about how he had literally instructed Pharrell Williams to write a song just like Got to give it up. In fact, he said that Williams even “pretended” that he was Marvin Gaye as he wrote Blurred Lines. Starting with that confession, a jury doesn’t really need a lawyer telling them that they will find in favor of Gaye as to all three elements: ownership, access and misappropriation.

Of course, by the time the litigation was in full swing in April 2014, Thicke was claiming in a deposition that he was drunk and high on Vicodin when he recorded Blurred Lines and that he barely remembered anything, and was barely involved in its production.  He claimed that Williams wrote “almost every single part of the song.” As for his claims in GQ, he attempted to discount their validity, stating that he was jealous and “wanted some of the credit.” To make matters worse, when he testified in court, Thicke tried to generate jury sympathy with a self-deprecating characterization of himself, testifying that he had lied repeatedly in interviews and in sworn legal documents in an attempt to claim co-writing credit for the song that is the biggest hit of his career thus far.  That kind of dishonesty doesn’t play well with a jury, as it’s difficult to know which statements made by the witness are true and which are false.  It’s King’s worse nightmare and a dream come true for Bosch.

In King’s opening comments of the trial he emphasized how artists needed wide berth in their creative pursuits, trying to implant in the minds of the jury the theme he had set out as fact in the complaint, that “[t]he intent of “Blurred Lines” was to evoke an era” and therefore the songs were “starkly different.” During his opening statement, he reinforced his theme of his case just as he, Williams and Thicke had reinforced it publicly in the press, on the Internet, and social in media: “We’re going to show you what you already know: that no one owns a genre or a style or a groove. To be inspired by Marvin Gaye is an honorable thing.”  In fact, the team is still pushing this idea that being an inspiration to current artists is an honorable thing.  While that statement is definitely true, what they ultimately discovered is that this inspiration looks a whole lot different than misappropriation.  By virtue of the Progress Clause of the Constitution, artists already have wide berth to be inspired by the creative ideas of others – indeed that is the very purpose of Copyright Law – but that does not mean that they can appropriate the expression of those ideas and call them their own!

Throughout this ordeal, Williams seems to be the most honest and sincere of the bunch, which is a tribute to his character, especially considering that Thicke basically threw him under the bus on multiple occasions during the course of the litigation. In his own testimony, Williams estimated that he has written thousands of songs in his 20-year career and believed that although Blurred Lines may have the “feel” of Gaye and the that genre of the late ’70s, it was nonetheless a wholly original creation.  Unfortunately for Pharell, however, Thicke and King had already set him up failure on this score by promoting their theme of the case on every social media outlet and online media that would print it.  While it may track well with the “all-information-on-the-Internet-should-be-free” crowd, the idea that Blurred Lines was a tribute to a generation, rather than an appropriation of Gaye, did not align with the facts at all, particularly the expert testimony we’ll examine below.

The exploitation of King’s case theory prior to the trial may have been successful from a publicity standpoint, but it gave Busch a significant advantage when it came to trial strategy and preparation, as can be gleaned from Busch’s assessment here:

[I]t was our opinion that Pharrell Williams and his lawyer Howard King wanted to litigate this in the press by continually saying that all they did was take a feeling. And if they did any copying, it was only a genre. We didn’t view it like this at all. Yes, it involved a big, popular song, but this was a straight-up copyright claim over com positional elements that we believed had been taken.

Once Thicke and Williams filed suit against them, the Gaye family counter sued, as almost anyone would expect, alleging that the song Blurred Lines misappropriated multiple protected elements of Got to Give it Up.  But these efforts were stymied early on by judge’s ruling on a summary judgment proceedings in the case.  Gaye’s attorney, Busch, filed a “mash up” of recordings of the two songs, claiming that the two “sound[ed] like a perfect, natural match because it blend[ed] sonically” and that the mash up was a “concrete musical illustration of the substantial similarities” between the two songs.

But in his response, King threw up the curveball argument that the Gaye family did not own their father’s commercially released sound recordings featured in the mash up, but instead owned the composition contained in the “lead sheet,” the sheet music that was filed with the application as the best copy.  The Gaye recordings belong to Motown Records, which is owned by Universal, which in turn owns Interscope — the record company that released Blurred Lines and a defendant in the Gayes’ countersuit.

Judge John Kronstadt agreed with King in a ruling in January and reaffirmed the ruling following an appeal from the Busch. His decision enforced that the Marvin Gaye recordings of “Got To Give It Up” and “After The Dance” couldn’t be heard in court. Instead, he required that the attorneys use only stripped-down instrumentals of both songs.  This was a significant victory for the Thicke team, as presentation of their recording against the banal sheet music of the original would most certainly reinforce the theme of their case that they were trying to replicate an era, not a song.  Further, it ostensibly hamstruck Busch, who could not longer let the jury hear some of the most obvious similarities between the recordings.

Busch said of this about the disability:

“[W]e tried this case with one-and-a-half arms tied behind our back thanks to the judge’s ruling to not allow the full Gaye recording to be played to the jury. The court held that our claim was limited to elements found on the lead sheet deposited with the Copyright Office, and had we lost, there certainly would have been an appeal. But we were able to overcome the disadvantage by preparing excerpts from the recording of what the court found to be arguably protected and have it compared to excerpts from “Blurred Lines.” In the end, this focused the jury on the music and allowed for a good comparison.”

“The court’s ruling may have contributed to the other side’s biggest mistake in my view,” Busch continued. “They focused heavily on allegedly specific note-for-note differences between the lead sheets and the recording.

So what was initially a huge defeat for the Gaye family actually turned in their favor, again thanks to the ill-fated theme of the case developed by King.  That brings us to the “always-present-in- copyright- infringement-actions” dueling musicologists! Copyright infringement actions traditional rely heavily on the testimony of such experts and this case was no exception.  The Gaye Estate relied on Berkeley professor and music expert, Judith Finnell & Harvard professor of African-American music Ingrid Monson, while the plaintiffs relied on Sandy Wilbur. And as Busch pointed out, due in large part to the theme of the case we’ve discussed above, the expert for Thicke and Gaye focused heavily on the “trees,” whereas the experts for the Gaye family took a broader approach, combining to focus on the “forest” as it were.

The jury heard testimony from Finell alleging that the two songs were substantially similar in a number of regards, despite the characterization by many, including Wilbur, that any similarities were relegated to common building blocks like drum beats and bass notes.  To begin, Finnell examined melodies and lyrics to several lines of both songs: “I used to go out to parties” in Gaye’s Got To Give It Up” and the chorus opener “And that’s why I’m gon’ take a good girl” in Blurred Lines.  She found the similarities in the melodies to those two phrases “pretty stunning” and “highly unusual.”  Both begin with a repetition of the same note, she opined — “one of the most important considerations in comparing melodies” — and end with a single word (“girl” and “dancing”) sung over several notes.  This effect is called a melisma, or the singing of a single syllable of text while moving between several different notes in succession.

Finell also noted that thematically the songs were similar in that they both described a type of transformation. The narrator of Got To Give It Up transforms from a wall hugger to an enthusiastic dancer, while in Blurred Lines, “the ‘good girl’ transforms into a more sexually liberated girl,” according to Finell.  Line by line, the Wilbur and Finell continued to compare the lyrics to song, including the line from Gaye “move it up / Turn it ’round / Shake it down” which is similar in melody and lyric to Thicke’s “Shake around / Get down / Get up.”

In his testimony, Williams, who wrote the lyrics to Blurred Lines, denied that “Shake around, get up, get down” closely resembled Gaye’s line “Move it up, turn it round, shake it down,” saying that “[i]n the average black family of the Seventies, that’s what we do when a song comes on. That’s what my dad used to say.”

Next, the expert compared what was variously described as the “signature phrases” of the two compositions: “Take a good girl” in Got to Give it Up and “Keep on dancin’ in Blurred Lines.”  Finell argued that “[i]n the case of these two hooks, the key words of the hook, the money words — ‘good girl’ and ‘dancing’ — [each] come immediately after the bar line,” referring to the timing of the lyrics. She also noted that the two phrases share three of their four notes.

Using example after example, Finell continued to drive home the fact that the similarities in the lyrics were too substantial to be any other than actual copying, dispelling the Thicke team’s mantra that they were simply copying a “feeling.”  The rap verse in Blurred Lines begins and ends, she testified, at the same point in the song as the Gaye song’s “parlando” — a lyrical chanting Finell described as “a precursor to rap.” Busch and Finell compared lyrics from the parlando and the rap verse, pairing Gaye’s “Let me step into/ to your erotic zone” with the repulsive line “I’ll give you something big enough to tear your @#$ in two”

After exhaustively parsing the lyrics and melodies, the experts finally arrive at what Avalon and most others focus on in this case, the interplay between the keyboard, bass and drums.  Both songs, Finell testified, feature remarkably similar bobbing keyboards and bass lines playing to similar rhythms and moments of silence. Finell noted that both of these underlying melodies use the E and A chord progressions and, of course, noted these similarities are also so extreme as to be beyond coincidence. Plaintiff’s expert Wilbur pointed out that chord progressions aren’t identical at all, since Got To Give It Up uses eight chords while Blurred Lines uses just two.  In an attempt to diminish the similarities, Thicke, during during his turn on the stand, played a medley of pop songs on a keyboard in order to demonstrate that many share the same chord progression and therefore can sound similar.

Now we come to my favorite part.  Since the theme of King’s case – i.e., that the two songs only possessed a similar style because Williams was “inspired” to create a tribute to the genre – had been widely publicized through their own efforts, this afforded Bosch the opportunity to build a counter attach. Wisely, in direct response, Busch brought in an expert to contradict this theory, and it is perhaps her testimony that helped sway the facts in favor of the jury’s finding of substantial similarity. The Gayes’ additional musical expert, Harvard professor of African-American music Ingrid Monson, bolstered Finell’s arguments about the similarities between the rhythm and bass line.  Monson testified that Gaye’s bass line, paired with a reggae- or ragtime-influenced keyboard melody, was highly unusual in Motown music, and very unique to Gaye.  That testimony made it difficult for the jury to accept the claim that Williams was merely influenced by a genre or generation of music in general instead of the Gaye’s composition specifically.  Monson opined that the similarities in this regard were substantial, leading her to suggest that while Blurred Lines was being written, Got To Give It Up was likely playing in the background. Since she wasn’t present when Blurred Lines was written, the judge sustained King’s objection and that remark was stricken from the record.

Finally, Finell also testified that there were additional strong melodic similarities. In her expert report and testimony, she identified a short, recurring melodic line she labeled “theme X,” heard over Gaye’s lyrical phrase “dancing lady” under the main vocal.  Finell identified this as the same melody Thicke sings under lyrics “OK, now he was close” and “But you’re an animal.”  Significantly, she identified one very recognizable note in “theme X’ that happened to be sung out of key.  This is reminiscent of the rest note that ultimately decided the George Harrison case regarding subconscious infringement, Bright Tunes Music v. Harrisongs Music 420 F. Supp. 177 (S.D.N.Y. 1976).  On that note, Finell drove home the substantial similarities between the songs, concluding that they are “… the same musical material. It’s the same notes, the same rhythm, just … the same.”

Miller responded to this damaging testimony by asserting that Thicke’s vocals don’t match the Gaye sheet music, but rather that any similarity between the songs is found in the recordings, thus repeating King’s theme of the case to the end.  But Finell pointed out that this discrepancy is a result of the fact that Thicke’s theme X matches a harmony that is implied in Gaye’s lead sheet, even though it is not written.  “It’s represented as one melodic line when really there’s three that occur,” she noted.

In the end, it is critically important to see this case through the eyes of the jury when evaluating the outcome.  Those eight people – five women and three men – saw the mountain of evidence, heard the dueling opinions, listened to the testimony of Williams and Thicke, and carefully evaluated and weighed the credibility of all that testimony and evidence to determine if Busch had met his obligation to prove ownership, access and misappropriation.  After careful deliberation, they believed the evidence indicated substantially similarities not only in the keyboard, drum and bass interplay, but also in the themes, melodies and lyrical construction.  The very unique musical elements used by Gaye, and no other Motown artists, were the same as those found in Blurred Lines.  Since access was admitted by Thicke and, to some degree, by Williams, the jury didn’t buy the shallow defense that this was a homage to 70’s R&B music.  Rather, it was a misappropriation of Gaye’s original song.   They believed Thicke’s early admission against interest in the GQ article that he had instructed Williams to write a song similar to Got to Give it Up, rather than he self-serving testimony that that admission was, in fact, a little white lie.  In the end, a jury of their peers determined that Thicke and Williams should pay $4 million in copyright damages plus profits attributable to infringement, which for Thicke was determined to be $1.8 million and for Williams was determined to be $1.6 million. While that total amounted to almost $7.4 million, one of the highest awards in history, it should be noted that the song has generated more than double that amount, so it is not unreasonable.  Busch immediately asked that the court suspend sales of the song.

After the trial, the Plaintiffs issued the following statement:

While we respect the judicial process, we are extremely disappointed in the ruling made today, which sets a horrible precedent for music and creativity going forward. “Blurred Lines” was created from the heart and minds of Pharrell, Robin and T.I. and not taken from anyone or anywhere else. We are reviewing the decision, considering our options and you will hear more from us soon about this matter.

Of course, they decided to appeal the verdict, so we will have to hear what the 9^th Circuit has to say about it.  In typical fashion, King announced the appeal on the Fox networks, repeating the now familiar themes:

We owe it to songwriters around the world to make sure this verdict doesn’t stand.  We are going to exercise every post-trial remedy we have to make sure this verdict does not stand. … Just because eight people think two songs are similar doesn’t mean they are. I think this is a horrible decision that is going to affect whether or not record labels provide the necessary funds for new music to be created.

In the end, King and his clients are still ignoring the evidence and leaning on the theme of his case, seeming even soliciting the support of friend like John Legend to denounce the verdict.   Of course, Legend was not present for the evidence.  Rather than “respect[ing] the judicial process,” they have mounted another social media campaign deriding the decision as a “horrible precedent” and a “horrible decision” for creativity.  You might admire them for that, but I would remind them that appeals courts tend to heavily favor the jury, who had the opportunity to impartially weight the credibility of the evidence and made their determination on that basis. If I had been sitting on that jury, this evidence likely would of swayed me in the same direction. Infringement, even unintended, is still infringement.

More importantly, I would remind everyone that this is the type of decision that actually encourages creativity.  If an artist know that his creation cannot be misappropriated, that artist will continue to create.  The day that we allow the unfettered use of creative expression without appropriate penalty is, in the words of Don McClean, the day the music died.