Blurred Lines Trial - Gaye injunction motion - Williams + Thicke v. Gaye.pdf
-
Upload
mark-h-jaffe -
Category
Documents
-
view
221 -
download
0
Transcript of Blurred Lines Trial - Gaye injunction motion - Williams + Thicke v. Gaye.pdf
-
8/9/2019 Blurred Lines Trial - Gaye injunction motion - Williams + Thicke v. Gaye.pdf
1/22
Pau H. Duva SBN 73699E-Mail: [email protected] & BALLOW6540 Lusk Blvd., Suite 250San Diego, CA 92121(858) 597-6000Fax: (858) 597-6008Attorneys for Defendants and Counter-Claimants Frankie Christian Gaye and
Nona Marvisa Gaye
R c ar S. Busc TN BPR 014594 pro acvice) E-Mail: [email protected] R. Ellis (TN BPR 030760) ( pro hac vice)E-Mail: [email protected] & BALLOW315 Union Street, Suite 1100
Nashville, TN 37201(615) 259-3456 Fax: (615) 726-5417Attorneys for Defendants and Counter-Claimants Frankie Christian Gaye and NonaMarvisa Gaye
Mar L. B oc SBN 115457E-Mail: [email protected] & FRENCH LLP1888 Century Park East; Suite 1520Los Angeles, CA 90067(310) 853-6355 Fax: (310) 853-6333Attorneys for Defendants and Counter-Claimants Frankie Christian Gaye and
Nona Marvisa Gaye
Pau N. P ps SBN 18792E-Mail: [email protected] Law Offices of Paul N. Philips9255 West Sunset BoulevardWest Hollywood, CA 90069(323)813-1126 Fax: (323) 854-6902Attorney for Defendant and Counter-ClaimantMarvin Gaye III
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
PHARRELL WILLIAMS, anindividual; ROBIN THICKE, anindividual; and CLIFFORD HARRIS,
JR., an individual,Plaintiffs,
vs.
BRIDGEPORT MUSIC, INC., aMichigan corporation; FRANKIECHRISTIAN GAYE, an individual;MARVIN GAYE III, an individual;
ONA MARVISA GAYE, anindividual; and DOES 1 through 10,inclusive,
Defendants.
_______________________________
AND RELATED COUNTERCLAIMS
Case No. CV13-06004-JAK AGRx
Hon. John A. Kronstadt, Ctrm 750
COUNTER-CLAIMANTS’ JOINT POST-TRIAL MOTION FOR INJUNCTIVERELIEF
ction Commenced: August 15, 2013Trial Date: February 24, 2015
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Case 2:13-cv-06004-JAK-AGR Document 346 Filed 03/17/15 Page 1 of 22 Page ID #:9629
-
8/9/2019 Blurred Lines Trial - Gaye injunction motion - Williams + Thicke v. Gaye.pdf
2/22
- i -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................................................. ii
I. INTRODUCTION ............................................................................................................................... 1
II.
ARGUMENT ....................................................................................................................................... 3
A. An Injunction Against the Exploitation of “Blurred Lines” is Necessary. ..................................... 4
1. Irreparable Injury is Inevitable and Remedies Available at Law are Inadequate to
Compensate for that Injury ....................................................................................................... 5
2. The Balance of Equities Weigh in Favor of the Gayes ............................................................. 6
3. An Injunction is in the Public Interest ...................................................................................... 7
B.
Acts by the Interscope Parties ......................................................................................................... 8
C. Impoundment of Copies of “Blurred Lines” is Necessary. ............................................................. 9
D. Relief Should Not Wait for a Ruling on Declaratory Relief ........................................................... 9
1. Declaratory Relief is Improper ............................................................................................... 10
2. Plaintiffs have Waived any Right to Request Judgment as a Matter of Law ......................... 11
3. There is no Colorable Basis to Even Argue for a New Trial .................................................. 12
II. CONCLUSION .................................................................................................................................. 16
Case 2:13-cv-06004-JAK-AGR Document 346 Filed 03/17/15 Page 2 of 22 Page ID #:9630
-
8/9/2019 Blurred Lines Trial - Gaye injunction motion - Williams + Thicke v. Gaye.pdf
3/22
- ii -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TABLE OF AUTHORITIES
Cases
Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3rd Cir. 1983) ......... 7
Bilbrey by Bilbrey v. Brown, 738 F.2d 1462 (9th Cir. 1984) ........................................... 11
Bridgeport Music, Inc. v. Justin Combs Pub., 507 F.3d 470 (6th Cir. 2007) ......... 5, 7, 8, 9
Cadence Design Systems, Inc. v. Avant! Corp., 125 F.3d 824 (9th Cir. 1997) .................. 6
Cal-Agrex, Inc. v. Tassell , 408 F. App’x 58 (9th Cir. 2011) ............................................ 13
Concrete Mach. Co. v. Classic Lawn Ornaments, Inc., 843 F.2d 600 (1st Cir. 1988) ....... 6
Desrosiers v. Flight Int’l of Fla., Inc., 156 F.3d 952 (9th Cir. 1998) ............................... 13
Dickinson v. Gen. Accident Fire & Life Assurance Corp., 147 F.2d 396 (9th Cir.1945) .............................................................................................................................. 10
E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951 (9th Cir. 2009) ............................... 12
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) ................................................. 4
eBay, Inc. v. Bidder’s Edge, Inc., 100 F. Supp. 2d 1058 (N.D. Cal. 2000) ........................ 6
Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103 (9th Cir.
1987) .............................................................................................................................. 11
Landes Constr. Co., Inc. v. Royal Bank of Can., 833 F.2d 1365 (9th Cir. 1987) ............. 13
McGraw-Edison Co. v. Preformed Line Prods. Co., 362 F.2d 339 (9th Cir. 1966) ........ 11
Metro – Goldwyn – Mayer Studios Inc. v. Grokster, Ltd., 518 F. Supp. 2d 1197 (C.D.
Cal. 2007) ........................................................................................................................ 3
Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd ., 545 U.S. 913 (2005) ..................... 8
Micro Star v. Formgen Inc., 154 F.3d 1107 (9th Cir. 1998) .............................................. 3
Milhouse v. Travelers Commercial Ins. Co., 982 F. Supp. 2d 1088 (C.D. Cal. 2013) .... 13
Molski v. M.J. Cable, Inc., 481 F.3d 724 (9th Cir. 2007) ................................................. 13
Ng v. Geithner , 418 F. A pp’x 625 (9th Cir. 2011) ........................................................... 12
Nitco Holding Corp. v. Boujikian, 491 F.3d 1086 (9th Cir. 2007) ................................... 12
Case 2:13-cv-06004-JAK-AGR Document 346 Filed 03/17/15 Page 3 of 22 Page ID #:9631
-
8/9/2019 Blurred Lines Trial - Gaye injunction motion - Williams + Thicke v. Gaye.pdf
4/22
- iii -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Openwave Sys. Inc. v. Myriad France S.A.S., No. C 10-02805 WHA, 2011 WL
2580991 (N.D. Cal. June 29, 2011) ............................................................................... 10
Oracle USA, Inc. v. Qtrax, Inc., No. C09-3334 SBA BZ, 2011 WL 4853436 (N.D.
Cal. Sept. 27, 2011) ......................................................................................................... 9
Sherman v. Wood , 573 F. App’x 666 (9th Cir. 2014) ................................................. 12, 13
Silver Sage Partners, Ltd. v. City of Desert Hot Springs, 251 F.3d 814 (9th Cir. 2001) . 13
Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984) ....................... 3, 9
Taylor Corp. v. Four Seasons Greetings, LLC , 403 F.3d 958 (8th Cir. 2005) ................... 7
Tortu v. Las Vegas Metro. Police Dep’t , 556 F.3d 1075 (9th Cir. 2009) ......................... 12
Triad Sys. Corp. v. Se. Exp. Co., 64 F.3d 1330 (9th Cir. 1995) ......................................... 6Trulsson v. Cnt y. of San Joaquin Dist. Attorney’s Office, No. 2:11-CV-02986 KJM,
2014 WL 4748117 (E.D. Cal. Sept. 23, 2014) .............................................................. 16
Walt Disney Co. v. Powell , 897 F.2d 565 (D.C. Cir. 1990)................................................ 5
Warner Bros. Entm’t Inc. v. WTV Sys., Inc., 824 F. Supp. 2d 1003 (C.D. Cal. 2011) ... 3, 7
Warner Bros. Home Entm’t Inc. v. FilmAndMusicUSA, LLC , No. CV 13-00874 SJO
JCX, 2013 WL 4478956 (C.D. Cal. Aug. 20, 2013) ........................................... 4, 5, 6, 7
White v. Samsung Elecs. Am., Inc., 989 F.2d 1512 (9th Cir. 1993) ................................... 3
Winarto v. Toshiba Am. Elecs. Components, 274 F.3d 1276 (9th Cir. 2001) .................. 11
Statutes
17 U.S.C. § 106 ...........................................................................................................3, 6, 8
17 U.S.C. § 502 ...........................................................................................................1, 4, 5
17 U.S.C. § 503 ............................................................................................................... 1, 4
Rules
Fed. R. Civ. P. 50 ........................................................................................................11, 12
Fed. R. Civ. P. 65 ................................................................................................................ 1
Treatises
Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 14.06 [B] (2007) .......... 5
Case 2:13-cv-06004-JAK-AGR Document 346 Filed 03/17/15 Page 4 of 22 Page ID #:9632
-
8/9/2019 Blurred Lines Trial - Gaye injunction motion - Williams + Thicke v. Gaye.pdf
5/22
- iv -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Case 2:13-cv-06004-JAK-AGR Document 346 Filed 03/17/15 Page 5 of 22 Page ID #:9633
-
8/9/2019 Blurred Lines Trial - Gaye injunction motion - Williams + Thicke v. Gaye.pdf
6/22
- 1 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Pursuant to 17 U.S.C. § 502 and 503 and Federal Rule of Civil Procedure 65,
Counter-Claimants Nona Marvisa Gaye, Frankie Christian Gaye, and Marvin Gaye III
(hereinafter “the Gayes”) respectfully move this Court to immediately and permanently
enjoin Plaintiffs and Counter-Defendants from reproducing, distributing, performing,
displaying, and preparing derivative works of the infringing work “Blurred Lines,” or
authorizing any third-party to do the same, and impound any and all infringing articles
containing the composition “Blurred Lines,” including all copies of the sound recording
“Blurred Lines,” since it contains the infringing composition in it. This Court’s ruling on
this Motion should not wait on the resolution of Plaintiffs’ planned Motion for
Declaratory Relief and Motion for New Trial because, as discussed below, they will notsucceed, and Plaintiffs are being unjustly enriched (and the Gayes irreparably harmed)
each day that “Blurred Lines” is being sold.
I.
INTRODUCTION
On August 15, 2013 Plaintiffs Robin Thicke, Pharrell Williams, and Clifford
Harris, Jr. (“Plaintiffs”) filed a Complaint seeking a declaration of non-infringement for
their composition and sound recording “Blurred Lines.” (Dkt. No. 1). On October 30,
2013, Nona Marvisa Gaye, Frankie Christian Gaye, and Marvin Gaye III filed a
counterclaim for infringement of “Got to Give it Up” by “Blurred Lines” and sought
under 17 U.S.C. § 502:
A permanent injunction requiring the [Plaintiffs and Counter-Defendants]
and their agents, servants, employees, officers, attorneys, successors,
licensees, partners, and assigns, and all persons acting in concert or
participation with each or any one of them, to cease directly and indirectly
infringing, and causing, enabling, facilitating, encouraging, promoting,
Case 2:13-cv-06004-JAK-AGR Document 346 Filed 03/17/15 Page 6 of 22 Page ID #:9634
-
8/9/2019 Blurred Lines Trial - Gaye injunction motion - Williams + Thicke v. Gaye.pdf
7/22
- 2 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
inducing, and/or participating in the infringement of any of Gaye Family’s
rights protected by the Copyright Act;1
(Dkt. No. 14 at 44).
On March 10, 2015, after a seven-day trial and nearly two days of deliberations, a
unanimous eight-member jury found “Blurred Lines” infringed the Gayes’ copyright in
“Got to Give it Up,” and awarded the Gayes $7,378,647.19 in profits and actual damages
against Plaintiffs Robin Thicke and Pharrell Williams.2 (Dkt. No. 320 at 2-3).
As discussed in the Gayes’ Motion to Correct the Verdict, filed
contemporaneously herewith, it is undisputed that Star Trak, Interscope, UMG
Recordings Inc., and Universal Music Distribution (collectively, the “InterscopeParties”), reproduce, sell, license, and distribute “Blurred Lines,” and by doing so are
also directly liable for copyright infringement. In addition, as explained below, and
without regard to their liability for direct copyright infringement, the Interscope Parties
must be enjoined from manufacturing, reproducing, distributing, selling, and licensing
“Blurred Lines” because the sound recording of “Blurred Lines” contains the infringing
musical composition “Blurred Lines,” and they cannot be permitted to distribute or
otherwise exploit it.
The Gayes do not intend to interminably cease the exploitation of “Blurred
Lines,” but instead seek this injunction and impoundment in order to negotiate an
1 On November 19, 2013, Counter-Claimant Marvin Gaye III filed his Counterclaim andalso sought a permanent injunction against Plaintiffs and Counter-Defendants for theexploitation of “Blurred Lines.” (Dkt. No. 36 at 17-18).2
The Gayes will concurrently file a Motion to Correct the Verdict to impose liability fordirect copyright infringement against Clifford Harris Jr., Interscope Records, a division ofUMG Recordings, Inc., Star Trak Entertainment, LLC, and Universal Music Distribution,a division of Universal Music Group Distribution Corp. As a matter of law, these CounterDefendants are all liable for copyright infringement. This was not only discussed at the trialas a possibility, but the motion was contemplated, discussed, and approved by the Court.(Busch Decl. Exhibit A, Trial Tr. March 4, 2015 at 164:16-18, Busch Decl. Exhibit B,March 5, 2015 at 38:8-18). The Gayes hereby incorporate the facts and arguments madewithin that Motion.
Case 2:13-cv-06004-JAK-AGR Document 346 Filed 03/17/15 Page 7 of 22 Page ID #:9635
-
8/9/2019 Blurred Lines Trial - Gaye injunction motion - Williams + Thicke v. Gaye.pdf
8/22
- 3 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
agreement with Plaintiffs and Counter-Defendants for proper attribution of Marvin Gaye
as a writer of “Blurred Lines” and for the use of “Got to Give it Up” in the infringing
work, so that the Gayes may share in the copyright and all future proceeds of “Blurred
Lines,” as is their right.
II.
ARGUMENT
The Gayes are entitled to the exclusive use of “Got to Give it Up” under 17 U.S.C.
§ 106, including the right to, and the exclusive right to authorize others to, reproduce,
distribute, sell, perform, display, and prepare derivative works of “Got to Give it Up.”
The Gayes also have the “exclusive right to decide when, where, to whom, and for how
much they will authorize transmission of their Copyrighted Works to the public.”Warner Bros. Entm’ t Inc. v. WTV Sys., Inc., 824 F. Supp. 2d 1003, 1012 (C.D. Cal.
2011) (citing Metro – Goldwyn – Mayer Studios Inc. v. Grokster, Ltd., 518 F. Supp. 2d
1197, 1218 (C.D. Cal. 2007)). Copyright owners also have the exclusive right to license
their works. See White v. Samsung Elecs. Am., Inc., 989 F.2d 1512, 1518 (9th Cir. 1993)
(balancing the right of fair use of parodies and “copyright holders’ exclusive rights to
license derivative works of [their] shows.”); see also Micro Star v. Formgen Inc., 154
F.3d 1107, 1113 (9th Cir. 1998) (citing Sony Corp. of Am. v. Universal City Studios,
Inc., 464 U.S. 417, 451 (1984) (in discussing that the infringement was for “purely
financial gain,” the Court stated “[e]very commercial use of copyrighted material is
presumptively an unfair exploitation of the monopoly privilege that belongs to the owner
of the copyright.”). The use of the composition of “Got to Give it Up” within the
composition and sound recording of “Blurred Lines” violates these rights.
Pursuant to the jury’s verdict of copyright infringement, Plaintiffs and Counter -
Defendants, and those in active concert or participation with them, must be enjoined
from any exploitation of the composition or sound recording “Blurred Lines ,” and
exploitation of any article containing or embodying “Blurred Lines,” including but not
limited to the album Blurred Lines. This Court should also order the impoundment of all
copies of “Blurred Lines,” including any album or other article containing or embodying
Case 2:13-cv-06004-JAK-AGR Document 346 Filed 03/17/15 Page 8 of 22 Page ID #:9636
-
8/9/2019 Blurred Lines Trial - Gaye injunction motion - Williams + Thicke v. Gaye.pdf
9/22
- 4 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
“Blurred Lines,” within Plaintiffs and Counter-Defendants’ possession, custody, and
control.
The Copyright Act explicitly authorizes a court to grant final injunctions to
prevent or restrain future infringement. “Any court having jurisdiction of a civil action
arising under this title may, subject to the provisions of section 1498 of title 28, grant
temporary and final injunctions on such terms as it may deem reasonable to prevent or
restrain infringement of a copyright.” 17 U.S.C. § 502(a). Further, this Court is
authorized to “order the impounding, on such terms as it may deem reasonable— of all
copies or phonorecords claimed to have been made or used in violation of the exclusive
right of the copyright owner.” 17 U.S.C. § 503(a)(1)(A).This is not controversial relief being requested. As explained below, it is required
and has been imposed whenever a finding of copyright infringement has been made and
the relief is requested.
A.
An Injunction Against the Exploitation of “Blurred Lines” is
Necessary.
To obtain a permanent injunction, a plaintiff must demonstrate: “(1) that it has
suffered an irreparable injury; (2) that remedies available at law, such as monetary
damages, are inadequate to compensate for that injury; (3) that, considering the balance
of hardships between the plaintiff and defendant, a remedy in equity is warranted; and
(4) that the public interest would not be disserved by a permanent injunction.” eBay Inc.
v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006); see also Warner Bros. Home
Entm’ t Inc. v. FilmAndMusicUSA, LLC , No. CV 13-00874 SJO JCX, 2013 WL
4478956, at *5 (C.D. Cal. Aug. 20, 2013).
The Gayes will suffer irre parable harm to their copyright in “Got to Give it Up” if
an injunction is not issued. Plaintiffs and Counter-Defendants will continue to
interpolate “Got to Give it Up” in “Blurred Lines” without authorization unless
precluded by this Court. Money damages awarded by the jury are not sufficient to
protect the Gayes’ intellectual property rights because the award is limited to past uses.
Case 2:13-cv-06004-JAK-AGR Document 346 Filed 03/17/15 Page 9 of 22 Page ID #:9637
-
8/9/2019 Blurred Lines Trial - Gaye injunction motion - Williams + Thicke v. Gaye.pdf
10/22
- 5 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Every sale that is not attributed and accounted to the Gayes is an infringement of their
exclusive rights. The balance of relative harms among the parties weighs in favor of
injunctive relief. An injunction order is also in the public interest to vindicate the
integrity of copyright law and the Gayes’ copyrights in “Blurred Lines.” “ Not only is
the issuance of a permanent injunction justified ‘[w]hen a copyright plaintiff has
established a threat of continuing infringement, he is entitled to an
injunction.’” Bridgeport Music, Inc. v. Justin Combs Pub., 507 F.3d 470, 492 (6th Cir.
2007) (quoting Walt Disney Co. v. Powell , 897 F.2d 565, 567 (D.C. Cir. 1990)). As
permitted by 17 U.S.C. § 502, Plaintiffs, Counter-Defendants, their agents, servants,
employees, officers, attorneys, successors, licensees, partners, and assigns, and all persons acting in concert or participation with each or any one of them, to cease directly
and indirectly infringing, and causing, enabling, facilitating, encouraging, promoting,
inducing, and/or participating in the infringement of any of Gaye Family’s rights
protected by the Copyright Act must be enjoined from further infringement.
1.
Irreparable Injury is Inevitable and Remedies Available at
Law are Inadequate to Compensate for that Injury
“It is uncontroversial that a ‘showing of past infringement and a substantial
likelihood of future infringement’ justifies issuance of a permanent injunction.”
Bridgeport Music, Inc., 507 F.3d at 492 (citing Melville B. Nimmer & David Nimmer,
Nimmer on Copyright § 14.06 [B] (2007). “Without such an injunction, [Plaintiffs and
Counter-Defendants] may continue to engage in the unauthorized use and sale of [the
Gayes’] copyrighted material.” Warner Bros. Home Entm't Inc., 2013 WL 4478956, at
*5. Despite the jury’s verdict, “Blurred Lines” continues to be sold on iTunes and
Amazon.com. (Attached to Busch Decl. as Exhibits C, D). “ Not only is the issuance of a
permanent injunction justified ‘[w]hen a copyright plaintiff has established a threat of
continuing infringement, he is entitled to an injunction.’” Bridgeport Music, Inc., 507
F.3d at 492 (quoting Walt Disney Co., 897 F.2d at 567).
Case 2:13-cv-06004-JAK-AGR Document 346 Filed 03/17/15 Page 10 of 22 Page ID #:9638
-
8/9/2019 Blurred Lines Trial - Gaye injunction motion - Williams + Thicke v. Gaye.pdf
11/22
- 6 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
A permanent injunction is justified because there is continued infringement of
“Got to Give it Up.” The jury’s award only applies to past sales of the infringing work
and does not provide the Gayes a percentage of future sales and profits. Further, without
an injunction, Plaintiffs and Counter-Defendants, in violation of 17 U.S.C. § 106, may
license “Blurred Lines” allowing others to infringe “Got to Give it Up.” “Harm resulting
from lost profits and lost customer goodwill is irreparable because it is neither easily
calculable, nor easily compensable and is therefore an appropriate basis for injunctive
relief .” Warner Bros. Entm’ t Inc., 824 F. Supp. 2d at 1013 (quoting eBay, Inc. v.
Bidder ’ s Edge, Inc., 100 F. Supp. 2d 1058, 1066 (N.D. Cal. 2000)). Irreparable injury
occurs with each sale of “Blurred Lines” that does not acknowledge Marvin Gaye as aco-writer and that is not accounted to the Gayes for the use of “Got to Give it Up;” the
Gayes cannot be compensated for that injury by law. Accordingly, the factors of
irreparable injury and lack of available remedies at law must be found in favor of the
Gayes.
2.
The Balance of Equities Weigh in Favor of the Gayes
An injunction would not harm Plaintiffs and Counter-Defendants and instead
would merely require them to comply with the Copyright Act. Warner Bros. Home
Entm’ t Inc., 2013 WL 4478956, at *5. Plaintiffs and Counter-Defendants “cannot
complain of the harm that will befall [them] when properly forced to desist from its
infringing activities.” Triad Sys. Corp. v. Se. Exp. Co., 64 F.3d 1330, 1338 (9th Cir.
1995). “Where the only hardship that the defendant will suffer is lost profits from an
activity which has been shown likely to be infringing, such an argument in defense
‘merits little equitable consideration . . . .’” Id. (quoting Concrete Mach. Co. v. Classic
Lawn Ornaments, Inc., 843 F.2d 600, 612 (1st Cir. 1988)); see also Cadence Design
Systems, Inc. v. Avant! Corp., 125 F.3d 824, 830 (9th Cir. 1997). Plaintiffs and Counter-
Defendants cannot assert any other harm.
Further, the Gayes “have every incentive to negotiate an agreement with
[Plaintiffs and Counter-Defendants] to permit them to distribute the infringing work, and
Case 2:13-cv-06004-JAK-AGR Document 346 Filed 03/17/15 Page 11 of 22 Page ID #:9639
-
8/9/2019 Blurred Lines Trial - Gaye injunction motion - Williams + Thicke v. Gaye.pdf
12/22
- 7 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
there is no reason to believe that the parties will not bargain around the injunction .”
Bridgeport Music, Inc., 507 F.3d at 493. In fact, “in copyright infringement actions, the
denial of a request for injunctive relief could otherwise ‘amount to a forced license to
use the creative work of another.’” Id. (quoting Taylor Corp. v. Four Seasons Greetings,
LLC , 403 F.3d 958, 967-68 (8th Cir. 2005) (upholding an immediate injunction on sales
of an infringing musical work pre-appeal). Moreover, because the award is only for past
sales, without injunctive relief, the Gayes would be forced to relitigate the infringement,
at least every three years,3 to collect the revenue and profits earned by Plaintiffs and
Counter-Defendants post-verdict.
As such, continued exploitation, without proper credit and compensation, willharm the Gayes and actually reward Plaintiffs and Counter-Defendants for their
infringing acts. Thus, this factor must weigh in favor of the Gayes.
3.
An Injunction is in the Public Interest
An injunction against the further exploitation of “Blurred Lines” is in the public
interest. “[I]t is virtually axiomatic that the public interest can only be served by
upholding copyright protections and correspondingly, preventing the misappropriation
of skills, creative energies, and resources which are invested in the protected work.”
Warner Bros. Entm’ t Inc., 824 F. Supp. 2d at 1015 (quoting Apple Computer, Inc. v.
Franklin Computer Corp., 714 F.2d 1240, 1255 (3rd Cir. 1983)). “A permanent
injunction would serve the public interest by protecting the holders of valid copyrights,
rather than allowing Defendants to continue selling inferior and infringing copies of
Plaintiff’s copyrighted material to the public.” Warner Bros. Home Entm’ t Inc., 2013
WL 4478956, at *5.
Any argument that the public would be denied the opportunity to hear or purchase
“Blurred Lines” should also fail. This is not a concern that is unique to this case; an
injunction is “the standard remedy when past infringement has been proven and future
3 The statute of limitations under the Copyright Act is three years. 17 U.S.C. § 507(b).
Case 2:13-cv-06004-JAK-AGR Document 346 Filed 03/17/15 Page 12 of 22 Page ID #:9640
-
8/9/2019 Blurred Lines Trial - Gaye injunction motion - Williams + Thicke v. Gaye.pdf
13/22
- 8 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
infringement is likely.” Bridgeport Music, Inc., 507 F.3d at 493. Thus, this factor must
also be weighed in favor of the Gayes.
B.
Acts by the Interscope Parties
Plaintiffs and Counter-Defendants’ counsel has publically stated that the Gayes
should not be able to obtain an injunction because the jury did not find infringement by
the “Interscope Parties.” Counsel is wrong. As discussed below, and in the Gayes’
Motion to Correct the Verdict, filed contemporaneously herewith, the Interscope Parties
are all liable for direct copyright infringement as a matter of law. In addition, and
irrespective of their liability for direct copyright infringement, the Interscope Parties are
manufacturing, reproducing, selling, and distributing and licensing, the infringingmusical composition “Blurred Lines” within the sound recording. This activity must be
halted immediately.
The jury has unanimously found copyright infringement and this Court has
previously stated that such finding automatically imputes liability to the Interscope
Parties so long as they are distributing “Blurred Lines.” This Court stated “[I]f you
establish infringement and it’s undisputed that a Universal entity or entities distributed
the recording, then there would be liability.” (Busch Decl. Exhibit A, Trial Tr. March 4,
2015 at 165:6-8). The Court additionally stated, “[i]f Star Trak distributed, then Star
Trak would be directly liable.” (Busch Decl. Exhibit A, Trial Tr. March 4, 2015 at
166:21-22). As discussed in detail above, and in the Gayes’ Motion to Correct the
Verdict, filed contemporaneously herewith, it is undisputed that the Interscope Parties
are all violating the exclusive rights of the Gayes with respect to “Blurred Lines.”
Accordingly, under 17 U.S.C. § 106 the Interscope Parties are directly liable for
infringement for their exploitation of “Blurred Lines.” Further, even if the Interscope
Parties were not directly liable, in light of the jury’s verdict, their continued acts of
exploitation would at minimum constitute willful vicarious and contributory
infringement. See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd ., 545 U.S. 913,
927 (2005).
Case 2:13-cv-06004-JAK-AGR Document 346 Filed 03/17/15 Page 13 of 22 Page ID #:9641
-
8/9/2019 Blurred Lines Trial - Gaye injunction motion - Williams + Thicke v. Gaye.pdf
14/22
- 9 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Furthermore, the sound recording of “Blurred Lines” contains the musical
composition that the jury found to be infringing, and it is that musical composition that
the Interscope Parties are selling, distributing, reproducing, performing, and displaying.
As was mentioned at trial, without the song, all Interscope would be distributing is a
picture of Robin Thicke and a CD containing silence. The Interscope Parties are
engaging in copyright infringement by selling “Blurred Lines” and must be enjoined.
Now that they are aware of the infringement by virtue of the jury’s verdict, they are now
also undeniably committing contributory copyright infringement with each sale. See id.
C. Impoundment of Copies of “Blurred Lines” is Necessary.
Upon a finding of copyright infringement, the Court “may order the impounding,on such terms as it may deem reasonable — of all copies or phonorecords claimed to have
been made or used in violation of the exclusive right of the copyright owner.” 17 U.S.C.
§ 503(a)(1)(A); see also Sony Corp. of Am., 464 U.S. at 434. Impoundment may also be
ordered when it is necessary to prevent violation of the Copyright Act. See Oracle USA,
Inc. v. Qtrax, Inc., No. C09-3334 SBA BZ, 2011 WL 4853436, at *2 (N.D. Cal. Sept.
27, 2011) report and recommendation adopted , No. C 09-3334 SBA BZ, 2011 WL
4853383 (N.D. Cal. Oct. 13, 2011).
In a similar music copyright infringement case, the Sixth Circuit found that the
district court did not err in ordering the impoundment of articles containing the
infringing work. After a finding of infringement, the district court immediately ordered
the defendants to impound all copies of the infringing song and album. Bridgeport
Music, Inc., 507 F.3d at 492. The appellate court upheld the district court’s ruling
applying the factors for injunctive relief. Accordingly, based on the arguments above,
this Court should order the impoundment of any and all infringing articles containing the
composition or sound recording “Blurred Lines.”
D. Relief Should Not Wait for a Ruling on Declaratory Relief
This Court’s ruling on injunctive relief should not wait for the resolution of
Plaintiffs’ Motion for declaratory relief because it will not succeed, and waiting on this
Case 2:13-cv-06004-JAK-AGR Document 346 Filed 03/17/15 Page 14 of 22 Page ID #:9642
-
8/9/2019 Blurred Lines Trial - Gaye injunction motion - Williams + Thicke v. Gaye.pdf
15/22
- 10 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
motion and its resolution will irreparably harm the Gayes. Plaintiffs and Counter-
Defendants are being unjustly enriched each day that “Blurred Lines” is being sold.
On August 15, 2013 Plaintiffs and Counter-Defendants filed a Complaint for
Declaratory Relief seeking a declaration that “the Gayes do not have an interest in the
copyright to the composition ‘Got to Give it Up’ sufficient to confer standing on them to
pursue claims of infringement of that composition; or alternatively . . . that ‘Blurred
Lines’ does not infringe ‘Got to Give it Up’ or otherwise violate the Gayes’ rights.”
(Dkt. No. 1 at 5). Plaintiffs also sought costs and attorney fees. ( Id .). Plaintiffs claimed
“there are no similarities between [P]laintiffs’ composition” and “Got to Give it Up”
“other than commonplace musical elements” and their intent was solely to “evoke anera.” ( Id . at 2).
On March 10, 2015, the jury found the Thicke Parties committed copyright
infringement and delivered a special verdict in favor of the Gayes that resolved all issues
raised by Plaintiffs’ Complaint. (Dkt. No. 320 at 2-3). Plaintiffs’ counsel has told the
Court that the Court’s ruling on their request for Declaratory Relief is not bound by the
jury’s verdict. (Busch Decl. Exhibit E, Trial Tr. March 10, 2015 at 17:11-13). Plaintiffs’
counsel is incorrect.
Plaintiffs’ request for Declaratory Relief must fail because (1) the jury verdict
resolved all issues raised by Plaintiffs’ Complaint and (2) Plaintiffs did not timely
request a Judgment as a Matter of Law under Federal Rule of Civil Procedure 50. They
have, therefore, waived any right to even request that this Court enter judgment in their
favor.
1.
Declaratory Relief is Improper
“Although declaratory relief is equitable in nature, ‘[t]he right to a jury trial of
factual issues ordinarily triable to a jury is expressly preserved by the declaratory
judgment statute.’” Openwave Sys. Inc. v. Myriad France S.A.S., No. C 10-02805 WHA,
2011 WL 2580991, at *2 (N.D. Cal. June 29, 2011) (quoting Dickinson v. Gen. Accident
Fire & Life Assurance Corp., 147 F.2d 396, 397 (9th Cir. 1945)). The Ninth Circuit has
Case 2:13-cv-06004-JAK-AGR Document 346 Filed 03/17/15 Page 15 of 22 Page ID #:9643
-
8/9/2019 Blurred Lines Trial - Gaye injunction motion - Williams + Thicke v. Gaye.pdf
16/22
- 11 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
explained that “Declaratory relief should be denied when it will neither aid in clarifying
and settling legal relations in issue nor terminate the proceedings and accord the parties
relief from the uncertainty and controversy they faced.” Greater Los Angeles Council on
Deafness, Inc. v. Zolin, 812 F.2d 1103, 1112 (9th Cir. 1987); see also Bilbrey by Bilbrey
v. Brown, 738 F.2d 1462, 1470 (9th Cir. 1984) (quoting McGraw-Edison Co. v.
Preformed Line Prods. Co., 362 F.2d 339, 342 (9th Cir. 1966), cert. denied, 385 U.S.
919 (1966)).
Here, declaratory relief will not clarify and settle the legal relations because the
jury has already reached a final verdict. Likewise, declaratory relief is inappropriate
because the controversy giving rise to the proceeding has been resolved by the verdict.The jury’s responses to Special Verdict questions 1 and 2 directly resolved the questions
of ownership of a valid copyright in “Got to Give it Up” and whether “Blurred Lines”
infringed “Got to Give it Up.” (Dkt. No. 320 at 2). The Court cannot now make a
contrary finding of fact. Winarto v. Toshiba Am. Elecs. Components, 274 F.3d 1276,
1283 (9th Cir. 2001).
Consequently, the issue of attorney’s fees has also been resolved. Under 17 U.S.C.
§ 505, the prevailing party may be awarded full costs and reasonable attorney’s fees. As
the Gayes, not the Plaintiffs, are the prevailing party, the Plaintiffs are not entitled to this
relief.
2.
Plaintiffs have Waived any Right to Request Judgment as a
Matter of Law
Plaintiffs have essentially requested a Judgment as a Matter of Law, through its
request for Declaratory Relief. Plaintiffs have, however, waived any right to seek this
relief. “In order to preserve a challenge to the sufficiency of the evidence to support the
verdict in a civil case, a party must make two motions. First, a party must file a pre-
verdict motion pursuant to Fed. R. Civ. P. 50(a). Second, [and only if it preserved its
rights by filing a Rule 50(a) motion,] a party must file a post-verdict motion for
judgment as a matter of law or, alternatively, a motion for a new trial, under Rule 50(b).”
Case 2:13-cv-06004-JAK-AGR Document 346 Filed 03/17/15 Page 16 of 22 Page ID #:9644
-
8/9/2019 Blurred Lines Trial - Gaye injunction motion - Williams + Thicke v. Gaye.pdf
17/22
- 12 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Nitco Holding Corp. v. Boujikian, 491 F.3d 1086, 1089 (9th Cir. 2007) (internal citations
omitted).
If a party has been fully heard on an issue during a jury trial and the court
finds that a reasonable jury would not have a legally sufficient evidentiary
basis to find for the party on that issue, the court may: (A) resolve the issue
against the party; and (B) grant a motion for judgment as a matter of law
against the party on a claim or defense that, under the controlling law, can be
maintained or defeated only with a favorable finding on that issue.
Fed. R. Civ. P. 50(a).
This motion must be made “before the case is submitted to the jury.” Id . No suchmotion was made. Failure to make such a motion forfeits the claim. Sherman v. Wood ,
573 F. App’x 666 (9th Cir. 2014); see also Ng v. Geithner , 418 F. App’x 625, 626 (9th
Cir. 2011) (Plaintiff waived ability to make post-verdict motion for judgment as a matter
of law by failing to make the motion at the close of his case); see also Tortu v. Las
Vegas Metro. Police Dep’ t , 556 F.3d 1075, 1083 (9th Cir. 2009) (“Failing to make a
Rule 50(a) motion before the case is submitted to the jury forecloses the possibility of
considering a Rule 50(b) motion.”); E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951,
961 (9th Cir. 2009) (“Under Rule 50, a party must make a Rule 50(a) motion for
judgment as a matter of law before a case is submitted to the jury.”). Plaintiffs made no
motion, for judgment as a matter of law or otherwise, prior to the case being submitted
to the jury, and thus, any such motion is now barred. Their request for declaratory relief
should be denied.
3.
There is no Colorable Basis to Even Argue for a New Trial
Recognizing that they cannot now ask for the Court to reverse the jury finding,
based on the alleged insufficiency of the evidence, and enter judgment in their favor, in
their Motion for Extension for More Time, Plaintiffs state that they intend to file a
Motion for a New Trial. (Dkt. No. 342). This motion will likewise fail, and should not
delay the issuance of the requested injunction.
Case 2:13-cv-06004-JAK-AGR Document 346 Filed 03/17/15 Page 17 of 22 Page ID #:9645
-
8/9/2019 Blurred Lines Trial - Gaye injunction motion - Williams + Thicke v. Gaye.pdf
18/22
- 13 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Denial of a new trial is appropriate as long as there is “some reasonable basis” for
the jury's decision. Sherman v. Wood , 573 F. App’x 666 (9th Cir. 2014) (quoting Molski
v. M.J. Cable, Inc., 481 F.3d 724, 729-30 (9th Cir. 2007)) (testimony and other evidence
at trial supported the jury’s conclusion that officers had probable cause for arrest). A
district court’s denial of motion for a new trial “should only be disturbed ‘where there is
an absolute absence of evidence to support the jury’s verdict.’” Cal-Agrex, Inc. v.
Tassell , 408 F. App’x 58, 60 (9th Cir. 2011) (quoting Desrosiers v. Flight Int ’ l of Fla.,
Inc., 156 F.3d 952, 957 (9th Cir. 1998)).
The Court “may not grant a new trial simply because it would have arrived at a
different verdict.” Milhouse v. Travelers Commercial Ins. Co., 982 F. Supp. 2d 1088,1093 (C.D. Cal. 2013) (quoting Silver Sage Partners, Ltd. v. City of Desert Hot Springs,
251 F.3d 814, 819 (9th Cir. 2001)). Instead, the Court must have a “definite and firm
conviction that a mistake has been committed.” Milhouse, 982 F. Supp. 2d at 1093
(quoting Landes Constr. Co., Inc. v. Royal Bank of Can., 833 F.2d 1365, 1371-72 (9th
Cir. 1987)).
This is a copyright infringement case involving three essential issues: (1)
ownership; (2) copying, both intrinsic and extrinsic; and (3) damages. The Thicke
Parties did not challenge the ownership of the Gaye Parties in “Got to Give it Up.” On
copying, this Court denied the motion for summary judgment of the Thicke Parties
related to the extrinsic test, and remarked time and again during the trial that the
different opinions of the musicologist experts on the extrinsic test was a matter for cross-
examination. (See, e.g., Busch Decl. Exhibit F, Trial Tr. Trial Tr. Feb. 25, 2015 at 93:14-
19; EX G, Feb. 26, 2015 at 105:5-107:2; EX H, Feb. 27, 2015 at 79:16-87:9; EX I,
March 3, 2015 at 2:2-4:11).
While the experts differ on their interpretation of the written music deposited with
the copyright office, Ms. Finell testified that it was a “lead sheet,” and was a short hand
transcription that a musician would be able to interpret and know what to play. (Busch
Decl. Exhibit G, Trial Tr. Feb. 26, 2015 at 40:9-14). Indeed, Plaintiffs’ own expert
Case 2:13-cv-06004-JAK-AGR Document 346 Filed 03/17/15 Page 18 of 22 Page ID #:9646
-
8/9/2019 Blurred Lines Trial - Gaye injunction motion - Williams + Thicke v. Gaye.pdf
19/22
- 14 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Sandy Wilbur also agreed that the material submitted as the deposit copy of “Got to
Give it Up” would be characterized by her as a “lead sheet” if she saw it in the ordinary
course of business. (Busch Decl. Exhibit J, Trial Tr. March 4, 2015 at 50:24-51:3). She
also gave sworn testimony in other cases that a lead sheet is a “less fleshed out version
of a chord pattern in a composition, that notation of a chord is representational, that there
are different ways to notate, and that different reasonable musicologists can interpret
notation differently. (Busch Decl. Exhibit K, Trial Tr. March 3, 2015 at 30:3-31:7). Ms.
Wilbur also stated in prior testimony that different notation may sound the same when
played. (Busch Decl. Exhibit K, Trial Tr. March 3, 2015 at 31:8-11).
Finally, Ms. Wilbur was thoroughly impeached on her musicological mistakes andinconsistent prior testimony. (Busch Decl. Exhibit K, Trial Tr. March 3, 2015 at 27:20-
90:12; EX J, March 4, 2015 at 3:11-55:2).
Ultimately, Ms. Finell and Dr. Monson explained in great detail how the musical
elements of “Blurred Lines” copied compositional elements of “Got to Give it Up,” in
many ways, (Busch Decl. Exhibit G, Feb. 26, 2015 at 39:6-160:8; EX H, Feb. 26, 2015
at 29:22-49:2, 50:7-99:25, 117:10-118:9), and Ms. Wilbur acknowledged how one must
look at the compositions in whole in order to reach an opinion on copying. (Busch Decl.
Exhibit K, Trial Tr. March 3, 2015 at 65:18-23). The jury also heard testimony from
Harry Weinger, a UMG Recordings, Inc. executive stating “Blurred Lines” was “utterly
based on” “Got to Give it Up.”4 (Busch Decl. Exhibit G, Trial Tr. Feb 26, 2015 at 14:14-
19). He also stated that he believed “Blurred Lines” “sampled/borrowed from” “Got to
Give it Up.” (Busch Decl. Exhibit G, Trial Tr. Feb 26, 2015 at 20:4-18, 38:2-7). Mr.
Weinger even admitted that the bass line in “Blurred Lines” sounded “very similar.” 5
4 Mr. Weinger’s emails were submitted to the jury as Exhibit 1200. 5 Mr. Williams also admitted that he understood when people say the bass lines in thetwo songs sound similar. (Busch Decl. Exhibit A, Trial Tr. March 4, 2015 PM session at128:7-129:8). Both Ms. Wilbur and Mr. Williams testified that certain of the audioexamples of “Blurred Lines” and “Got to Give it Up” played for them sounded similar.(Busch Decl. Exhibit A, Trial Tr. March 4, 2015 at 126:23-128:3, 52:5-24).
Case 2:13-cv-06004-JAK-AGR Document 346 Filed 03/17/15 Page 19 of 22 Page ID #:9647
-
8/9/2019 Blurred Lines Trial - Gaye injunction motion - Williams + Thicke v. Gaye.pdf
20/22
- 15 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(Busch Decl. Exhibit G, Trial Tr. Feb 26, 2015 at 37:8-10). The jury also heard
inconsistent stories from Mr. Thicke and Williams about the creation of “Blurred Lines,”
including how both were thinking of “Got to Give it Up” during its creation.6 (Busch
Decl. Exhibit F, Trial Tr. Feb. 25, 2015 at 105:8-109:24, PM session 4:23-11:7; EX A
March 4, 2015 at 136:3-137:21). The jurors heard that testimony, listened to the musical
excerpts, and reached the correct decision. There was not only not an “absence of any
evidence” to support the jury verdict, but there was overwhelming evidence supporting
the verdict.
Indeed, this Court has already recognized, after its Motion in Limine Rulings, that
there was sufficient evidence to allow the Gayes to prevail in this action. In its denial ofthe Gayes’ Ex Parte Application for Interlocutory Appeal, the Court stated, as a reason
for its denial of the application for appeal, that the Gayes “could prevail at trial” even
though they were restricted to snippets of edited sound recordings. (Dkt. No. 251 at 9).
Finally, on damages, the jurors heard from Nancie Stern, who explained that the
use of “Got to Give it Up” in “Blurred Lines” would have resulted in 50%
ownership/licensing fee being granted to the Gayes if a license had been negotiated
before release of “Blurred Lines,” and a much higher percentage after release. (Busch
Decl. Exhibit I, Trial Tr. March 3, 2015 at 27:18-22, 28:16-22). The parties agreed that
the publishing revenue for “Blurred Lines” was $6.38 million with professional fees
subtracted. (Busch Decl. Exhibit I, Trial Tr. March 3, 2015 at 43:25-45:20).7 The Gayes’
financial expert, Gary Cohen testified that without professional fees subtracted, the
publishing revenue for “Blurred Lines” was over $8 million. (Busch Decl. Exhibit I,
Trial Tr. March 3, 2015 at 48:4-21). Thus, the $4 million actual damage award was not
6 Despite Mr. Williams saying that a bass and keyboard running together throughout asong as they do in “Got to Give it Up” and “Blurred Lines” is common, Plaintiffs did notsubmit even one example that sounds remotely the same as the bass line and keyboardcombination in “Got to Give it Up” and “Blurred Lines” sound to each other.7 This stipulation was also submitted to the jury as Exhibit 1766.
Case 2:13-cv-06004-JAK-AGR Document 346 Filed 03/17/15 Page 20 of 22 Page ID #:9648
-
8/9/2019 Blurred Lines Trial - Gaye injunction motion - Williams + Thicke v. Gaye.pdf
21/22
- 16 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
only supported by Ms. Stern and Mr. Cohen’s testimony, but was modest, and a much
higher award would have been justified.
The $3.38 million profit award was also more than justified and supported by the
evidence. The jury heard about how Robin Thicke and UMG marketed “Blurred Lines”
by evoking Marvin Gaye and “Got to Give it Up” from the beginning, and how the song
copied “Got to Give it Up.” They also heard Robin Thicke admit that he only began
mentioning “Got to Give it Up” when people began connecting the two songs, and that
he will say in his interviews whatever he needs to say in order to sell records. (Busch
Decl. Exhibit I, Trial Tr. Feb. 25, 2015 at 103:23-104:4, 105:12-106:12). He obviously
thus understood that tying “Blurred Lines” to “Got to Give it Up” would sell records because he began mentioning “Got to Give it Up” in his promotional interviews right
from the very first interview he gave, and repeated those statements many times
thereafter. His message, from the very start, was that “Blurred Lines” was “Got to Give
it Up” Part 2, and he stated as much in his interv iews. (Busch Decl. Exhibit F, Trial Tr.
Feb. 25, 2015 at 95:12-22). Nicole Bilzerian, who headed UMG’s marketing of “Blurred
Lines,” stated that a consistent message from the artist is vital in marketing and
promoting music, and Mr. Thicke’s message was to tie “Blurred Lines” and “Got to
Give it Up” into a single song. (Busch Decl. Exhibit A, Trial Tr. March 4, 2015 at 12:19-
22).
Finally, the copying of the musical elements of “Got to Give it Up” also supports
the profit award. The jury heard how some element of “Got to Give it Up” runs
throughout “Blurred Lines.” The jury award is more than supported by the evidence,
and in no way is “grossly excessive.” Trulsson v. Cnty. of San Joaquin Dist. Attorney’ s
Office, No. 2:11-CV-02986 KJM, 2014 WL 4748117, at *12 (E.D. Cal. Sept. 23, 2014)
(jury award must be “grossly excessive”).
II. CONCLUSION
Based on the foregoing, the Gayes respectfully request this Court immediately and
permanently enjoin Plaintiffs and Counter-Defendants from reproducing, distributing
Case 2:13-cv-06004-JAK-AGR Document 346 Filed 03/17/15 Page 21 of 22 Page ID #:9649
-
8/9/2019 Blurred Lines Trial - Gaye injunction motion - Williams + Thicke v. Gaye.pdf
22/22
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
performing, displaying, and preparing derivative works of the infringing work “Blurred
Lines,” or authorizing any third-party to do the same, and impound any and all infringing
articles containing the composition “Blurred Lines,” including all copies of the sound
recording “Blurred Lines.”
Dated: March 17, 2015 Respectfully submitted,
KING & BALLOW
By: /s/ Richard S. BuschRICHARD S. BUSCH
PAUL H. DUVALLSARA R. ELLIS
WARGO & FRENCH, LLP
By: /s/ Mark L. BlockMARK L. BLOCK
Attorneys for Defendants and Counter-Claimants
Nona and Frankie Gaye
THE LAW OFFICES OF PAUL N. PHILIPS
By: /s/ Paul N. PhilipsPAUL N. PHILIPS
Attorney for Defendant and Counter-Claimant Marvin Gaye III
Case 2:13-cv-06004-JAK-AGR Document 346 Filed 03/17/15 Page 22 of 22 Page ID #:9650