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

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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

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Case 2:13-cv-06004-JAK-AGR Document 346 Filed 03/17/15 Page 1 of 22 Page ID #:9629


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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



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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



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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



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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,



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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.



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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



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“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.



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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).



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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



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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).



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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).



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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



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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



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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).”



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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.



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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



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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).



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(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.



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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



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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


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