From the star-studded cast of characters to the fact that “Blurred Lines” remains the longest running number one single of the decade, there is no shortage of reasons why the “Blurred Lines” copyright infringement lawsuit has captivated the public’s attention. The action was first brought by Pharrell Williams, Robin Thicke and Clifford Harris (a/k/a T.I.) as a declaratory judgment action, following assertions by the Estate of Marvin Gaye that “Blurred Lines” infringed Gaye’s work, “Got to Give it Up.” Yesterday, a California jury agreed, finding that Williams, Thicke and Harris did indeed copy Gaye’s work, and awarding the Estate approximately $7.4 million in damages. However, what the jury ultimately decided in the “Blurred Lines” case is far less important than the fact that the jury had an opportunity to render a verdict at all.
Given the tremendous cost of prosecuting and/or defending copyright infringement actions, it should not be surprising that many claims are settled early on. Those that are not settled are routinely decided through summary judgment. Courts apply a two-part test for copyright infringement: ownership and copying. Because direct evidence of copying is rarely available, plaintiffs may establish copying through access and “substantial similarity” between the works. In most cases, ownership is conceded and, in the case of a work disseminated throughout the world, access is presumed. Although there are a number of tests applied to determine “substantial similarity,” generally there must be some objective similarity between the works (the Ninth Circuit also includes a subjective analysis). Accordingly, on summary judgment, the judge is asked to determine, as a matter of law, whether the “ordinary observer” would find two works sufficiently similar. To many, this gatekeeping function is critical to filter out baseless claims. To the cynic, however, the judge is often simply replacing the role of the jury in deciding whether misappropriation has occurred.
Perhaps given the massive sales numbers involved and the rapt attention of the public, there was no settlement in the “Blurred Lines” case. In the fall of last year, the United States District Court for the Central District of California denied Williams, Thicke and Harris’s motion for summary judgment, setting the stage for what was an extremely dramatic trial culminating in yesterday’s jury verdict. While it is unclear whether the “Blurred Lines” case represents an outlier or a trend towards more copyright infringement trials, it undoubtedly provides hope to those whose works have been misappropriated but are dissuaded from enforcing their rights due to cost of suit and the fact that their claims were historically unlikely to be heard by a jury of their peers.