williams v. bridgeport music inc

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“Blurred Lines” Case: Williams v. Bridgeport Music Inc. Barry F. Irwin, P.C. Vice President, Lawyers for the Creative Arts

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Page 1: Williams v. Bridgeport Music Inc

“Blurred Lines” Case:Williams v. Bridgeport Music Inc.

Barry F. Irwin, P.C.

Vice President, Lawyers for the Creative Arts

Page 2: Williams v. Bridgeport Music Inc

Overview

• Background of Artists and Works at Issue

• Litigation Timeline

• Key Legal Issues Addressed• Scope of Copyright

• Substantial Similarity Analysis

• Exclusions of evidence

• Jury’s Findings

• Post-trial Determinations

2Barry F. Irwin, P.C.7/8/2015

Page 3: Williams v. Bridgeport Music Inc

Background of Artists and Works At Issue

Page 4: Williams v. Bridgeport Music Inc

Marvin Gaye

• “Prince of Soul”

• By the age of 44, had 12 #1 hits, 18 Top-10 hits, 41 Top-40 hits, including:

• “I Heard it Through the Grapevine”

• “What’s Going On”

• “Let’s Get it On”

• “Sexual Healing”

• Grammy Award winner

• Rock and Roll Hall of Fame inductee

4Barry F. Irwin, P.C.7/8/2015

Page 5: Williams v. Bridgeport Music Inc

Got to Give it Up

• Composed and recorded in 1976

• Reached #1 on three charts

• Registered with the US Copyright Office in 1977 by Jobete Music Company

• Lead sheet deposited with the USCOprepared by unknown person

5Barry F. Irwin, P.C.7/8/2015

Page 6: Williams v. Bridgeport Music Inc

Pharrell Williams & Robin ThickeWilliams

• Composer, performer, producer since early 1990s

• Written and produced for artists such as Britney Spears, Jay-Z, …

• Released several group and solo studio albums

Thicke

• Composer, performer, and publisher since mid 1990s

• Has released 7 studio albums and numerous singles

6Barry F. Irwin, P.C.7/8/2015

Page 7: Williams v. Bridgeport Music Inc

Blurred Lines

• Released in March 2013 as a single, and on Blurred Lines album in July 2013

• #1 in over 114 countries

• Sextuple platinum (6M) by Sept. 2013

• 16 weeks at #1 on Billboard’s Hot R&B/Hip-Songs chart, a new record

• Video has had almost 400 million Youtube views

7Barry F. Irwin, P.C.7/8/2015

Page 8: Williams v. Bridgeport Music Inc

Litigation Timeline

Page 9: Williams v. Bridgeport Music Inc

Litigation Timeline

March, July 2013: “Blurred Lines” single, album released

August 15, 2013: DJ action filed by Thicke Parties

October 30, 2013: Infringement counterclaims filed by Gayes

October 30, 2014: Summary judgment motion denied

January 26, 2015: Final pretrial conference, MIL rulings

February 24 – March 10, 2015: Jury Trial

9Barry F. Irwin, P.C.7/8/2015

Page 10: Williams v. Bridgeport Music Inc

Key Legal Issues Addressed

Page 11: Williams v. Bridgeport Music Inc

Legal Issues Overview

• Scope of the Copyright• Did the copyright encompass the entire composition as reflected in the sound

recording, or just those aspects reflected in the lead sheets

• Substantial Similarity Analysis

• Was Blurred Lines substantially similar to the protected composition

• Exclusions of evidence• What evidence and arguments could and could not be considered

11Barry F. Irwin, P.C.7/8/2015

Page 12: Williams v. Bridgeport Music Inc

Scope of Copyright

Page 13: Williams v. Bridgeport Music Inc

Scope of Copyright

• To obtain a copyright in a musical work prior to 1978, the author had to:1. Publish it with proper copyright notice …, and then later register [the

composition], or2. If not published, submit a copyright application with a deposit copy

• The Court suggested that had there been a publication of the composition that was more fulsome than what was found in the lead sheets, the scope of the copyright may have extended to that more fulsome publication

• Court found distribution of sound recording was not a publication of the composition, because distribution of sound recordings before 1978 “[do] not … constitute publication of the musical work.” 17 U.S.C. § 303(b) (1997 amendment to 1976 Copyright Act effective retroactively)

• So, because no evidence of other publication, prong 1 did not apply and under prong 2 the scope of copyright protection limited to the deposit copy.

13Barry F. Irwin, P.C.7/8/2015

Page 14: Williams v. Bridgeport Music Inc

Significance of Lead Sheet Limitation

• The deposited lead sheets lacked certain elements:• Percussion lines

• backup vocals

• Parties debated whether other elements were in lead sheets:• bass lines: first 8 bars included, then

“simile”

• keyboard lines: chord changes indicated

14Barry F. Irwin, P.C.7/8/2015

Page 15: Williams v. Bridgeport Music Inc

Substantial Similarity Analysis

Page 16: Williams v. Bridgeport Music Inc

Initial “Constellation” of Alleged Similarities

1. Signature phrases 2. Hooks3. Hooks sung with backup vocals4. Theme X5. Backup hooks6. Bass lines7. Keyboard parts8. Percussion partsAdditional Similarities

(Noted in italics: those elements ruled as not present in the deposit copy)

From Preliminary Report of Judith Finell, Dkt 14, beginning at p. 47

16Barry F. Irwin, P.C.7/8/2015

Page 17: Williams v. Bridgeport Music Inc

Similarity #1 – Signature phrase

“Got to Give it Up”:

I used to go out to parties

“Blurred Lines”:

And that’s why I’m gon’ take a good girl

17Barry F. Irwin, P.C.7/8/2015

Page 18: Williams v. Bridgeport Music Inc

Similarity #1 – Signature phrase

Shared elements:

• Repeat starting tone several times

• Followed by tones with an identical scale degree sequence 5-6-1followed by 1-5

• Identical rhythms for the first six tones

• Melodic “tail”, melisma, on last lyric beginning with scale degrees 1-5

• Similar melodic contours, rising/lowering

18Barry F. Irwin, P.C.7/8/2015

Page 19: Williams v. Bridgeport Music Inc

Similarity #2 – Hooks

“Got to Give it Up”:

Keep on dancin’

“Blurred Lines”:

Take a good girl

19Barry F. Irwin, P.C.7/8/2015

Page 20: Williams v. Bridgeport Music Inc

Similarity #2 – Hooks

• Repeated throughout each song

• Initially identical scale degrees (except on third note): 6-1--1

• Rhythm

20Barry F. Irwin, P.C.7/8/2015

Page 21: Williams v. Bridgeport Music Inc

Significance of Similarities 1 and 2

• Appropriation of signature phrase – “I Used to Go Out to Parties” –was allegedly critical because virtually all of Got To Give It Up developed from its signature phrase

• Similarity of hooks was compounded by the fact that there were numerous variations of the Blurred Lines hook – “Take a Good Girl –(with each variation taking at least two defining features of the hook)

Barry F. Irwin, P.C. 217/8/2015

Page 22: Williams v. Bridgeport Music Inc

Similarity #3 – Hooks with backup vocals

• Backup vocals sung simultaneously with main vocal melodies

• Highlighting key words in both hooks

• Identical scale degrees: 6-1-6-1/5

22Barry F. Irwin, P.C.7/8/2015

Page 23: Williams v. Bridgeport Music Inc

Similarity #4 – Theme X

• Theme X is basically a note pattern• Mid-point descent, followed by a

half-step ascent (“chromatic feature”)• Scale degree (3-3-#2-3)(SJ), or similar

scale degree (5-5-#4-5)(full report)

• This theme was allegedly “core material” for Blurred Lines

23Barry F. Irwin, P.C.7/8/2015

Page 24: Williams v. Bridgeport Music Inc

Similarity #4 – Theme X

“Got to Give it Up”:

Dancin’ lady, …

“Blurred Lines”:

1. If you can’t hear

2. If you can’t read

3. Okay now he was close

4. But you’re an animal

5. And that’s why I’m

6. But you’re a good girl

7. ....

Barry F. Irwin, P.C. 247/8/2015

Page 25: Williams v. Bridgeport Music Inc

Similarity #5 – Backup hooks

“Got to Give it Up”:

Dancin’ lady

“Blurred Lines”:

Hey, hey, hey

25Barry F. Irwin, P.C.7/8/2015

Page 26: Williams v. Bridgeport Music Inc

Similarity #5 – Backup hooks

• Chromatic half step sequences

• Repeated over 20 times

26Barry F. Irwin, P.C.7/8/2015

Page 27: Williams v. Bridgeport Music Inc

Similarity #6 – Bass Melodies

• Similar rhythm and scale degrees

• Location: instrumental intro, repeated throughout

• Ascending leap: 1-4• Around :20 in “Give”, :05 in “Blurred”

• Descending melody: 5 – 1• Occurs at end of section to herald a new one

• Always occurs with keyboard parts

27Barry F. Irwin, P.C.7/8/2015

Page 28: Williams v. Bridgeport Music Inc

Similarity #7 – Keyboard parts

• Similar chords emphasizing off beats

• Staccato articulation

• Shared pitches

• Silent on the 4th beat

28Barry F. Irwin, P.C.7/8/2015

Page 29: Williams v. Bridgeport Music Inc

Similarity #8 – Percussion lines

• Cowbell• Syncopated rhythms played by cowbell

• Shared deviation from standard drums instrumentation

• “indispensable feature in both songs identity”

• Open hi-hat• Plays on second ½ of beat 4 in both songs

• On the weakest beat of the bar, creating a “splash”

• “crucial to the character of both songs”

29Barry F. Irwin, P.C.7/8/2015

Page 30: Williams v. Bridgeport Music Inc

Additional similarities

• Distinctive falsetto in vocals

• Omission of guitar which deviated from norm

• Party noises

Added in the 10/31/14 “Full Report”:

• Shared musical “fingerprint”• “Woo” in GTGIU (twice) and repeated throughout BL on 2nd half of beat 3

• Hand clap rhythms

• Lyrics• Story line (transforming to confident dancer; seducing a woman)• Sexual phrases• Up, round, shake, down • Parlando/rap section, both from bars 73-88• Question/answer structure

30Barry F. Irwin, P.C.7/8/2015

Page 31: Williams v. Bridgeport Music Inc

Summary of Main Similarities

• Lyrics• “Signature Phrases,” “hooks” and “back-up hooks” share scale degree, rhythm

and tone

• Instrumentation• Lower, slower bass lines

• Keyboard parts• Only 2 different chords, repeated throughout

• Parlando/rap section

Barry F. Irwin, P.C. 317/8/2015

Page 32: Williams v. Bridgeport Music Inc

Exclusions of Evidence

Page 33: Williams v. Bridgeport Music Inc

Thicke Parties Successful MILs

• Evidence or argument that Gaye’s fame contributed to song’s success• However, statements of Thicke and other parties as to creation and

promotion of “Blurred Lines” were allowed

• Third party statements regarding the similarity of the two songs• Excluded as inadmissible lay opinions

• Evidence of Robin Thicke’s touring income• Proffered expert, Gary Cohen, did not sufficiently identify portion of the

income attributable to “Blurred Lines”

33Barry F. Irwin, P.C.7/8/2015

Page 34: Williams v. Bridgeport Music Inc

Gayes Parties Successful MILs

• Evidence of consultation with Lawrence Ferrara• Retained by the Gayes as an expert consultant in anticipation of litigation, but

not to testify at trial

• EMI’s Refusal• EMI’s assertions of noninfringement and refusal to pursue claims

• Peter Oxendale’s noninfringement opinion

• Bruce Scavuzzo• Executive of EMI who would testify regarding EMI’s reasons for not pursuing claims and

the Oxendale report

34Barry F. Irwin, P.C.7/8/2015

Page 35: Williams v. Bridgeport Music Inc

Jury’s Findings

Page 36: Williams v. Bridgeport Music Inc

Verdict

36Barry F. Irwin, P.C.7/8/2015

Page 37: Williams v. Bridgeport Music Inc

Verdict

Barry F. Irwin, P.C. 377/8/2015

Page 38: Williams v. Bridgeport Music Inc

Statements After Blurred Lines Release

• Thicke, May 7, 2013 to GQ:“Pharrell and I were in the studio and I told him that one of my favorite songs of all time was Marvin Gaye’s ‘Got to Give it Up.’ I was like, ‘Damn, we should make something like that, something with that groove.’”

• Williams, March 2013, to XXL: “… I was trying to pretend that I was Marvin Gaye and what he would do…”

• Weinger, email to UMG executives:Blurred Lines is “utterly based on” Give it Up, that it “copied / sampled” it

38Barry F. Irwin, P.C.7/8/2015

Page 39: Williams v. Bridgeport Music Inc

Subsequent Statements

• Williams, in his deposition:Q: “Did Marvin Gaye’s ‘Got to Give it Up’ ever cross your mind at all at any time while you were creating ‘Blurred Lines’”?A: “No.”

• Williams, in his trial testimony:He only realized “after the fact” that he was “picturing himself as Marvin Gaye” when creating “Blurred Lines”

• Thicke, in his deposition:All of his public statements were untrue, and he only mentioned Marvin Gaye to sell records

• Thicke, in his trial testimony:He only realized he wasn’t in the studio and didn’t tell Williams anything when Williams said so in his deposition, a “light bulb went on”

7/8/2015 Barry F. Irwin, P.C. 39

Page 40: Williams v. Bridgeport Music Inc

Closing Argument – Credibility

• Thicke• Drew connection with “Give it Up” in interviews promoting “Blurred Lines”

• Then changed his sworn testimony in the case: that he wasn’t there when it was created and he didn’t tell Williams anything

• According to him, only said it to get credit and sell records

• Williams• Said he took the feeling of “Give it Up” and Marvin Gaye

• But switched to saying it never crossed his mind, that he only realized it “after the fact”

• Parlando and rap sections start on the same bar “randomly”

Barry F. Irwin, P.C. 407/8/2015

Page 41: Williams v. Bridgeport Music Inc

Closing Argument – Credibility

• Wilbur (Thicke Parties’ expert)• Testified contrarily in other cases: that a lead sheet is a “less fleshed-out

version of a chord pattern” in a musical composition

• She played keyboard rhythms in her re-creation of “Give it Up,” while also claiming keyboard parts not contained in lead sheets

• When trying to convince the jury there was no substantial similarity, stopped playing bass in the middle: “[she] did not feel it worked”

• Lied about working as a copyist

Barry F. Irwin, P.C. 417/8/2015

Page 42: Williams v. Bridgeport Music Inc

Closing Argument

“I guess at the end of the day it boils down to this: Who do you believe? That’s what it boils down to.”

-Richard S. Busch, attorney for the Gayes

Barry F. Irwin, P.C. 427/8/2015

Page 43: Williams v. Bridgeport Music Inc

Post-trial Determinations

Page 44: Williams v. Bridgeport Music Inc

Post-trial Determinations

• Hearing held June 29th, Court announced views on motions

• Tentatively denied:• Thicke - JMOL, new trial, and remittitur of profit award against Thicke

• Gayes - injunction

• Tentatively granted:• Thicke - remittitur of profit award against Williams to 40-100%

• Gayes - declaration that all plaintiffs, not just Thicke and Williams, are directly liable for infringement; ongoing royalty of 50%; and prejudgment interest

Page 45: Williams v. Bridgeport Music Inc

Thanks!Barry F. Irwin

Chris De Lillo – primary drafter extraordinaire

Irwin IP

[email protected]