Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Williams v. Gaye

United States Court of Appeals, Ninth Circuit

March 21, 2018

Pharrell Williams, an individual; Clifford Harris, Jr., an individual; Robin Thicke, an individual, DBA I Like'em Thicke Music, Plaintiffs-Counter-Defendants-Appellants,
v.
Frankie Christian Gaye, an individual; Marvin Gaye III, an individual; Nona Marvisa Gaye, an individual, Defendants-Counter-Claimants-Appellees. and More Water From Nazareth Publishing, Inc.; Star Trak Entertainment; Interscope Records; UMG Recordings, Inc.; Universal Music Distribution, Counter-Defendants-Appellants, Pharrell Williams, an individual; Clifford Harris, Jr., an individual; Robin Thicke, an individual, DBA I Like'em Thicke Music, Plaintiffs-Counter-Defendants-Appellees, and More Water From Nazareth Publishing, Inc.; Star Trak Entertainment; Interscope Records; UMG Recordings, Inc.; Universal Music Distribution, Counter-Defendants-Appellees,
v.
Frankie Christian Gaye, an individual; Marvin Gaye III, an individual; Nona Marvisa Gaye, an individual, Defendants-Counter-Claimants-Appellants. Pharrell Williams, an individual; Robin Thicke, an individual, DBA I Like'em Thicke Music; Clifford Harris, Jr., an individual, Plaintiffs-Counter-Defendants-Appellees, and More Water From Nazareth Publishing, Inc.; Star Trak Entertainment; Interscope Records; UMG Recordings, Inc.; Universal Music Distribution, Counter-Defendants-Appellees.
v.
Frankie Christian Gaye, an individual; Marvin Gaye III, an individual; Nona Marvisa Gaye, an individual, Defendants-Counter-Claimants-Appellants.

          Argued and Submitted October 6, 2017 Pasadena, California

          Amended July 11, 2018

          Appeal from the United States District Court for the Central District of California John A. Kronstadt, District Judge, Presiding D.C. No. 2:13-cv-06004-JAK-AGR

          Kathleen M. Sullivan (argued) and Ellyde R. Thompson, Quinn Emanuel Urquhart & Sullivan LLP, New York, New York; Daniel C. Posner, Quinn Emanuel Urquhart & Sullivan LLP, Los Angeles, California; Howard E. King, Stephen D. Rothschild, and Seth Miller, King Holmes Paterno & Soriano LLP, Los Angeles, California; for Plaintiffs-Appellants/Cross-Appellees Pharrell Williams, Clifford Harris Jr., Robin Thicke, and More Water from Nazareth Publishing Inc.

          Mark E. Haddad (argued), Amanda R. Farfel, Michelle B. Goodman, Rollin A. Ransom, and Peter I. Ostroff, Sidley Austin LLP, Los Angeles, California, for Defendants-Appellants/Cross-Appellees Star Trak Entertainment, Interscope Records, UMG Recordings Inc., Universal Music Distribution.

          Lisa Blatt (argued), Arnold & Porter LLP, Washington, D.C.; Richard S. Busch (argued), Sara R. Ellis, and Steven C. Douse, King & Ballow, Nashville, Tennessee; Daniel B. Asimow and Martin R. Glick, Arnold & Porter LLP, San Francisco, California; Paul H. Duvall, King & Ballow, Century City, California; Mark L. Block, Wargo & French LLP, Los Angeles, California; Paul N. Philips, Law Offices of Paul N. Philips APLC, Beverly Hills, California; for Defendants-Appellees/Cross-Appellants Frankie Christian Gaye, Marvin Gaye III, and Nona Marvisa Gaye.

          Kenneth D. Freundlich, Freundlich Law, Encino, California, for Amici Curiae Musicologists.

          Edwin F. McPherson, McPherson Rane LLP, Los Angeles, California, for Amici Curiae 212 Songwriters, Composers, Musicians, and Producers.

          Charles Duan, Public Knowledge, Washington, D.C., for Amicus Curiae Public Knowledge.

          Sean M. O'Connor, Lateef Mtima, and Steven D. Jamar, Institute for Intellectual Property and Social Justice Inc., Rockville, Maryland, for Amicus Curiae Institute for Intellectual Property and Social Justice; Musicians and Composers; and Law, Music, and Business Professors.

          Bernard A. Burk, Director, Lawyering Skills Program, William H. Bowen School of Law, University of Arkansas at Little Rock, Little Rock, Arkansas; Howard Barry Abrams, University of Detroit Mercy School of Law, Detroit, Michigan; for Amici Curiae Musicologists.

          Eugene Volokh, Mayer Brown LLP, Los Angeles, California; Erich C. Carey and Danielle M. Aguirre, National Music Publishers' Association, Washington, D.C.; for Amici Curiae Recording Industry Association of America and National Music Publishers' Association.

          Before: MILAN D. SMITH, JR., MARY H. MURGUIA, and JACQUELINE H. NGUYEN, Circuit Judges.

         SUMMARY [*]

         Copyright

         The panel filed (1) an order amending an opinion and dissent and denying, on behalf of the court, a petition for rehearing en banc; and (2) an amended opinion and dissent in a copyright case.

         In its amended opinion, the panel affirmed in part and reversed in part the district court's judgment after a jury trial, ruling that plaintiffs' song "Blurred Lines" infringed defendants' copyright in Marvin Gaye's song "Got To Give It Up."

         The panel held that "Got To Give It Up" was entitled to broad copyright protection because musical compositions are not confined to a narrow range of expression. The panel accepted, without deciding, the merits of the district court's ruling that the scope of the defendants' copyright was limited, under the Copyright Act of 1909, to the sheet music deposited with the Copyright Office, and did not extend to sound recordings.

         The panel held that the district court's order denying summary judgment was not reviewable after a full trial on the merits.

         The panel held that the district court did not err in denying a new trial. The district court properly instructed the jury that there is no scienter requirement for copyright infringement and that it must find both access and substantial similarity. The district court did not erroneously instruct the jury to consider unprotectable elements of "Got To Give It Up." The district court did not abuse its discretion in admitting expert testimony. In addition, the verdict was not against the clear weight of the evidence because there was not an absolute absence of evidence of extrinsic and intrinsic similarity between the two songs.

         The panel held that the district court's award of actual damages and infringers' profits and its running royalty were proper.

         Reversing in part, the panel held that the district court erred in overturning the jury's general verdict in favor of certain parties because the defendants waived any challenge to the consistency of the jury's general verdicts. In addition, there was no duty to reconcile the verdicts. The district court erred in finding one party secondarily liable for vicarious infringement.

         The panel held that the district court did not abuse its discretion in denying the defendants' motion for attorneys' fees under § 505 of the Copyright Act or in apportioning costs among the parties.

         Dissenting, Judge Nguyen wrote that "Blurred Lines" and "Got To Give It Up" were not objectively similar as a matter of law under the extrinsic test because they differed in melody, harmony, and rhythm, and the majority's refusal to compare the two works improperly allowed the defendants to copyright a musical style.

         ORDER

         The opinion and dissent filed March 21, 2018, and reported at 885 F.3d 1150, are hereby amended. The amended opinion and dissent will be filed concurrently with this order.

         Judges M. Smith and Murguia voted to deny the petition for rehearing en banc. Judge Nguyen voted to grant it. The full court has been advised of the petition for rehearing en banc, and no judge requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

         The petition for rehearing en banc, filed April 11, 2018, is DENIED. No further petitions for panel rehearing or rehearing en banc will be entertained in this case.

          OPINION

          M. SMITH, CIRCUIT JUDGE

         After a seven-day trial and two days of deliberation, a jury found that Pharrell Williams, Robin Thicke, and Clifford Harris, Jr.'s song "Blurred Lines," the world's best-selling single in 2013, infringed Frankie Christian Gaye, Nona Marvisa Gaye, and Marvin Gaye III's copyright in Marvin Gaye's 1977 hit song "Got To Give It Up." Three consolidated appeals followed.

         Appellants and Cross-Appellees Williams, Thicke, Harris, and More Water from Nazareth Publishing, Inc. (collectively, Thicke Parties) appeal from the district court's judgment. They urge us to reverse the district court's denial of their motion for summary judgment and direct the district court to enter judgment in their favor. In the alternative, they ask us to vacate the judgment and remand the case for a new trial, on grounds of instructional error, improper admission of expert testimony, and lack of evidence supporting the verdict. If a new trial is not ordered, they request that we reverse or vacate the jury's awards of actual damages and infringer's profits, and the district court's imposition of a running royalty. Finally, they seek reversal of the judgment against Harris, challenging the district court's decision to overturn the jury's general verdict finding in Harris's favor.

         Appellants and Cross-Appellees Interscope Records, UMG Recordings, Inc., Universal Music Distribution, and Star Trak, LLC (collectively, Interscope Parties) appeal from the district court's judgment. They urge us to reverse the judgment against them, challenging the district court's decision to overturn the jury's general verdict finding in their favor.

         Appellees and Cross-Appellants Frankie Christian Gaye, Nona Marvisa Gaye, and Marvin Gaye III (collectively, Gayes) appeal from the district court's order on attorney's fees and costs. They request that we vacate and remand for reconsideration the district court's denial of attorney's fees, and award them their costs in full. The Gayes also protectively cross-appeal the district court's ruling limiting the scope of the Gayes' compositional copyright to the four corners of the sheet music deposited with the United States Copyright Office. In the event a new trial is ordered, the Gayes urge us to hold that Marvin Gaye's studio recording of "Got To Give It Up," rather than the deposit copy, establishes the scope of the Gayes' copyright under the Copyright Act of 1909.

         We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Our law requires that we review this case, which proceeded to a full trial on the merits in the district court, under deferential standards of review. We accordingly decide this case on narrow grounds, and affirm in part and reverse in part.

         FACTUAL AND PROCEDURAL BACKGROUND

         A. "Got To Give It Up"

         In 1976, Marvin Gaye recorded the song "Got To Give It Up" in his studio. "Got To Give It Up" reached number one on Billboard's Hot 100 chart in 1977, and remains popular today.

         In 1977, Jobete Music Company, Inc. registered "Got To Give It Up" with the United States Copyright Office and deposited six pages of handwritten sheet music attributing the song's words and music to Marvin Gaye. Marvin Gaye did not write or fluently read sheet music, and did not prepare the deposit copy. Instead, an unidentified transcriber notated the sheet music after Marvin Gaye recorded "Got To Give It Up."

         The Gayes inherited the copyrights in Marvin Gaye's musical compositions.

         B. "Blurred Lines"

         In June 2012, Pharrell Williams and Robin Thicke wrote and recorded "Blurred Lines." Clifford Harris, Jr., known popularly as T.I., separately wrote and recorded a rap verse for "Blurred Lines" that was added to the track seven months later. "Blurred Lines" was the best-selling single in the world in 2013.

         Thicke, Williams, and Harris co-own the musical composition copyright in "Blurred Lines." Star Trak and Interscope Records co-own the sound recording of "Blurred Lines." Universal Music Distribution manufactured and distributed "Blurred Lines."

         C. The Action

         The Gayes made an infringement demand on Williams and Thicke after hearing "Blurred Lines." Negotiations failed, prompting Williams, Thicke, and Harris to file suit for a declaratory judgment of non-infringement on August 15, 2013.

         The Gayes counterclaimed against the Thicke Parties, alleging that "Blurred Lines" infringed their copyright in "Got To Give It Up, "[1] and added the Interscope Parties as third-party defendants.

         D. The District Court's Denial of Summary Judgment

         The district court denied Williams and Thicke's motion for summary judgment on October 30, 2014.

         1. The District Court's Interpretation of the Copyright Act of 1909

         The district court ruled that the Gayes' compositional copyright, which is governed by the Copyright Act of 1909, did not extend to the commercial sound recording of "Got To Give It Up," and protected only the sheet music deposited with the Copyright Office. The district court accordingly limited its review of the evidence to the deposit copy, and concluded there were genuine issues of material fact.

         2. The Evidence

         The Thicke Parties relied upon the opinion of musicologist Sandy Wilbur. The Gayes relied upon the opinions of Dr. Ingrid Monson, the Quincy Jones Professor of African American Music at Harvard University, and musicologist Judith Finell. The experts disagreed sharply in their opinions, which they articulated in lengthy reports.

         Finell opined that there is a "constellation" of eight similarities between "Got To Give It Up" and "Blurred Lines," consisting of the signature phrase, hooks, [2] hooks with backup vocals, "Theme X, "[3] backup hooks, bass melodies, keyboard parts, and unusual percussion choices.

         Wilbur opined that there are no substantial similarities between the melodies, rhythms, harmonies, structures, and lyrics of "Blurred Lines" and "Got To Give It Up," and disputed each area of similarity Finell identified. The district court compared Finell's testimony with Wilbur's and, pursuant to the extrinsic test under copyright law, meticulously filtered out elements Wilbur opined were not in the deposit copy, such as the backup vocals, "Theme X," descending bass line, keyboard rhythms, and percussion parts.

         The district court also filtered out several unprotectable similarities Dr. Monson identified, including the use of a cowbell, hand percussion, drum set parts, background vocals, and keyboard parts. After filtering out those elements, the district court considered Dr. Monson's analysis of harmonic and melodic similarities between the songs, and noted differences between Wilbur's and Dr. Monson's opinions.

         After performing its analytical dissection, as part of the extrinsic test, the district court summarized the remaining areas of dispute in the case. The district court identified disputes regarding the similarity of the songs' signature phrases, hooks, bass lines, keyboard chords, harmonic structures, and vocal melodies. Concluding that genuine issues of material fact existed, the district court denied Williams and Thicke's motion for summary judgment.

         E. Trial

         The case proceeded to a seven-day trial. The district court ruled before trial that the Gayes could present sound recordings of "Got To Give It Up" edited to capture only elements reflected in the deposit copy. Consequently, the commercial sound recording of "Got To Give It Up" was not played at trial.

         Williams and Thicke testified, each acknowledging inspiration from Marvin Gaye and access to "Got To Give It Up."

         Finell testified that "Blurred Lines" and "Got To Give It Up" share many similarities, including the bass lines, keyboard parts, signature phrases, hooks, "Theme X," bass melodies, word painting, and the placement of the rap and "parlando" sections in the two songs. She opined that nearly every bar of "Blurred Lines" contains an element similar to "Got To Give It Up." Although the district court had filtered out "Theme X," the descending bass line, and the keyboard rhythms as unprotectable at summary judgment, Finell testified that those elements were in the deposit copy.

         Dr. Monson played three audio-engineered "mash-ups" she created to show the melodic and harmonic compatibility between "Blurred Lines" and "Got To Give It Up." She testified that the two songs shared structural similarities on a sectional and phrasing level.

         Wilbur opined that the two songs are not substantially similar and disputed Finell and Dr. Monson's opinions. Wilbur prepared and played a sound recording containing her rendition of the deposit copy of "Got To Give It Up."

         Neither the Thicke Parties nor the Gayes made a motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(a) before the case was submitted to the jury.

         On March 10, 2015, after two days of deliberation, the jury returned mixed general verdicts.[4] The jury found that Williams, More Water from Nazareth Publishing, [5] and Thicke infringed the Gayes' copyright in "Got To Give It Up." In contrast, the jury found that Harris and the Interscope Parties were not liable for infringement. The jury awarded the Gayes $4 million in actual damages, $1, 610, 455.31 in infringer's profits from Williams and More Water from Nazareth Publishing, and $1, 768, 191.88 in infringer's profits from Thicke.

         F. The District Court's Order on Post-Trial Motions

         The district court ruled on the parties' various post-trial motions in an omnibus order.

         The Thicke Parties filed a motion for judgment as a matter of law, a new trial, or remittitur. The district court denied the Thicke Parties' motion for judgment as a matter of law and motion for a new trial, but remitted the award of actual damages and the award of Williams' profits.

         The Gayes filed three motions, seeking (1) a declaration that Harris and the Interscope Parties were liable for infringement; (2) injunctive relief or, in the alternative, ongoing royalties; and (3) prejudgment interest. The district court construed the Gayes' motion for declaratory relief as a post-trial motion for judgment as a matter of law, and granted the motion, overturning the jury's general verdicts in favor of Harris and the Interscope Parties. The district court denied the Gayes' request for injunctive relief, but awarded them a running royalty of 50% of future songwriter and publishing revenues from "Blurred Lines." The district court granted in part the Gayes' motion for prejudgment interest.

         G. The Judgment and Order on Attorney's Fees and Costs

         The district court entered judgment on December 2, 2015. The court awarded the Gayes $3, 188, 527.50 in actual damages, profits of $1, 768, 191.88 against Thicke and $357, 630.96 against Williams and More Water from Nazareth Publishing, and a running royalty of 50% of future songwriter and publishing revenues received by Williams, Thicke, and Harris.

         On April 12, 2016, the district court denied the Gayes' motion for attorney's fees and apportioned costs between the parties. The parties timely appealed.

         ANALYSIS

         I. Governing Law

         We begin by discussing the law applicable to this case.

         A. Elements of a Copyright Infringement Claim

         To prevail on a copyright infringement claim, a plaintiff must show that (1) he or she owns the copyright in the infringed work, and (2) the defendant copied protected elements of the copyrighted work. Swirsky v. Carey, 376 F.3d 841, 844 (9th Cir. 2004). A copyright plaintiff may prove copying with circumstantial, rather than direct, evidence. Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir. 2000). "Absent direct evidence of copying, proof of infringement involves fact-based showings that the defendant had 'access' to the plaintiff's work and that the two works are 'substantially similar.'" Id. (quoting Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir. 1996)).

         We use a two-part test for substantial similarity: an extrinsic test and an intrinsic test. Swirsky, 376 F.3d at 845. For a jury to find substantial similarity, there must be evidence on both the extrinsic and intrinsic tests. Id. (citing Rice v. Fox Broad. Co., 330 F.3d 1170, 1174 (9th Cir. 2003)). A district court applies only the extrinsic test on a motion for summary judgment, as the intrinsic test is reserved exclusively for the trier of fact. Benay v. Warner Bros. Entm't, Inc., 607 F.3d 620, 624 (9th Cir. 2010).

         The extrinsic test is objective. Swirsky, 376 F.3d at 845. It "considers whether two works share a similarity of ideas and expression as measured by external, objective criteria." Id. Application of "[t]he extrinsic test requires 'analytical dissection of a work and expert testimony.'" Id. (quoting Three Boys Music, 212 F.3d at 485). An analytical dissection, in turn, "requires breaking the works 'down into their constituent elements, and comparing those elements for proof of copying as measured by "substantial similarity."'" Id. (quoting Rice v. Fox Broad. Co., 148 F.Supp.2d 1029, 1051 (C.D. Cal. 2001)).

         The intrinsic test, on the other hand, is subjective. Three Boys Music, 212 F.3d at 485. It "asks 'whether the ordinary, reasonable person would find the total concept and feel of the works to be substantially similar.'" Id. (quoting Pasillas v. McDonald's Corp., 927 F.2d 440, 442 (9th Cir. 1991)).

         "Because the requirement is one of substantial similarity to protected elements of the copyrighted work, it is essential to distinguish between the protected and unprotected material in a plaintiff's work."[6] Swirsky, 376 F.3d at 845. Still, "substantial similarity can be found in a combination of elements, even if those elements are individually unprotected." Id. at 848; see also Metcalf v. Bochco, 294 F.3d 1069, 1074 (9th Cir. 2002) ("Each note in a scale, for example, is not protectable, but a pattern of notes in a tune may earn copyright protection."); Three Boys Music, 212 F.3d at 485-86 (upholding jury's finding of substantial similarity based on "a combination of unprotectible elements"). This principle finds particular relevance in application of the intrinsic test, as a trier of fact may "find that the over-all impact and effect indicate substantial appropriation," even if "any one similarity taken by itself seems trivial." Sid & Marty Krofft Television Prods., Inc. v. McDonald's Corp., 562 F.2d 1157, 1169 (9th Cir. 1977) (quoting Malkin v. Dubinsky, 146 F.Supp. 111, 114 (S.D.N.Y. 1956)), superseded in part on other grounds, 17 U.S.C. § 504(b); see also Three Boys Music, 212 F.3d at 485.

         B. The Standard of Similarity for Musical Compositions

         We have distinguished between "broad" and "thin" copyright protection based on the "range of expression" involved. Mattel, Inc. v. MGA Entm't, Inc., 616 F.3d 904, 913-14 (9th Cir. 2010). "If there's a wide range of expression . . ., then copyright protection is 'broad' and a work will infringe if it's 'substantially similar' to the copyrighted work." Id. (citation omitted). On the other hand, "[i]f there's only a narrow range of expression . . ., then copyright protection is 'thin' and a work must be 'virtually identical' to infringe." Id. at 914 (citation omitted). To illustrate, there are a myriad of ways to make an "aliens-attack movie," but "there are only so many ways to paint a red bouncy ball on blank canvas." Id. at 913-14. Whereas the former deserves broad copyright protection, the latter merits only thin copyright protection. See id.

         We reject the Thicke Parties' argument that the Gayes' copyright enjoys only thin protection. Musical compositions are not confined to a narrow range of expression.[7] See Swirsky, 376 F.3d at 849 (noting that "[m]usic . . . is not capable of ready classification into only five or six constituent elements," but "is comprised of a large array of elements"). They are unlike a page-shaped computer desktop icon, see Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1444 (9th Cir. 1994), or a "glass-in-glass jellyfish sculpture," Satava v. Lowry, 323 F.3d 805, 810 (9th Cir. 2003). Rather, as we have observed previously, "[m]usic . . . is not capable of ready classification into only five or six constituent elements," but is instead "comprised of a large array of elements, some combination of which is protectable by copyright." Swirsky, 376 F.3d at 849. As "[t]here is no one magical combination of . . . factors that will automatically substantiate a musical infringement suit," and as "each allegation of infringement will be unique," the extrinsic test is met, "[s]o long as the plaintiff can demonstrate, through expert testimony . . ., that the similarity was 'substantial' and to 'protected elements' of the copyrighted work." Id. We have applied the substantial similarity standard to musical infringement suits before, see id.; Three Boys Music, 212 F.3d at 485, and see no reason to deviate from that standard now. Therefore, the Gayes' copyright is not limited to only thin copyright protection, and the Gayes need not prove virtual identity to substantiate their infringement action.

         C. The Copyright Act of 1909

         Marvin Gaye composed "Got To Give It Up" before January 1, 1978, the effective date of the Copyright Act of 1976. Accordingly, the Copyright Act of 1909 governs the Gayes' compositional copyright. See Twentieth Century Fox Film Corp. v. Entm't Distrib., 429 F.3d 869, 876 (9th Cir. 2005); Dolman v. Agee, 157 F.3d 708, 712 n.1 (9th Cir. 1998).

         While the Copyright Act of 1976 protects "works of authorship" fixed in "sound recordings," 17 U.S.C. § 102, the 1909 Act did not protect sound recordings. It is well settled that "[s]ound recordings and musical compositions are separate works with their own distinct copyrights."[8] See VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 877 (9th Cir. 2016) (quoting Erickson v. Blake, 839 F.Supp.2d 1132, 1135 n.3 (D. Or. 2012)). It remains unsettled, however, whether copyright protection for musical compositions under the 1909 Act extends only to the four corners of the sheet music deposited with the United States Copyright Office, or whether the commercial sound recordings of the compositions are admissible to shed light on the scope of the underlying copyright. Here, the district court ruled that the 1909 Act protected only the deposit copy of "Got To Give It Up," and excluded the sound recording from consideration.

         The Gayes cross-appeal the district court's interpretation of the 1909 Act only in the event the case is remanded for a new trial. The parties have staked out mutually exclusive positions. The Gayes assert that Marvin Gaye's studio recording may establish the scope of a compositional copyright, despite the 1909 Act's lack of protection for sound recordings. The Thicke Parties, on the other hand, elevate the deposit copy as the quintessential measure of the scope of copyright protection.[9] Nevertheless, because we do not remand the case for a new trial, we need not, and decline to, resolve this issue in this opinion. For purposes of this appeal, we accept, without deciding, the merits of the district court's ruling that the scope of the Gayes' copyright in "Got To Give It Up" is limited to the deposit copy.

         II. The District Court's Order Denying Summary Judgment is Not Reviewable After a Full Trial on the Merits.

         The Thicke Parties seek review of the district court's order denying their motion for summary judgment, contending that the district court erred in its application of the extrinsic test for substantial similarity.

         The order is not reviewable. The Supreme Court has squarely answered the question: "May a party . . . appeal an order denying summary judgment after a full trial on the merits? Our answer is no." Ortiz v. Jordan, 562 U.S. 180, 183-84 (2011). An order denying summary judgment is "simply a step along the route to final judgment." Id. at 184. "Once the case proceeds to trial, the full record developed in court supersedes the record existing at the time of the summary-judgment motion." Id.

         The Thicke Parties argue that we may nonetheless review the district court's denial of summary judgment for legal error. We "generally do 'not review a denial of a summary judgment motion after a full trial on the merits.'" Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1243 (9th Cir. 2014) (quoting Banuelos v. Constr. Laborers' Tr. Funds for S. Cal., 382 F.3d 897, 902 (9th Cir. 2004)). We carved out an exception to this general rule in the past, concluding that we may review "denials of summary judgment motions where the district court made an error of law that, if not made, would have required the district court to grant the motion.'" Id. (quoting Banuelos, 743 F.3d at 902).

         Ortiz calls into question the continuing viability of our exception.[10] In Ortiz, the Supreme Court declined to address the argument that "'purely legal' issues capable of resolution 'with reference only to undisputed facts'" are preserved for appellate review even after trial. 562 U.S. at 189. Read broadly, Ortiz does not foreclose review of denials of summary judgment after trial, so long as the issues presented are purely legal. But read narrowly, the Court's dicta does not endorse such an exception either.

         We need not decide today whether our exception survives Ortiz unaltered. The Thicke Parties' arguments "hardly present 'purely legal' issues capable of resolution 'with reference only to undisputed facts.'" Id. The district court's application of the extrinsic test of similarity was a factbound inquiry far afield from decisions resolving "disputes about the substance and clarity of pre-existing law." Id. The district court's ruling bears little resemblance to legal issues we have reviewed pursuant to our exception. See, e.g., Escriba, 743 F.3d at 1243-45 (examining whether "the district court erred as a matter of law by entertaining [defendant's] 'legally impossible' theory of the case that [plaintiff] affirmatively declined to take FMLA leave"); Banuelos, 382 F.3d at 903 (examining whether "the district court erred as a matter of law when it concluded it could hear evidence outside the administrative record" in an ERISA case); Pavon v. Swift Transp. Co., 192 F.3d 902, 906 (9th Cir. 1999) (reviewing the district court's ruling on claim preclusion). We accordingly conclude that Ortiz forecloses our review of the district court's denial of summary judgment.

         III. The District Court Did Not Abuse its Discretion in Denying a New Trial.

         We review the district court's denial of a motion for a new trial for abuse of discretion. Lam v. City of San Jose, 869 F.3d 1077, 1084 (9th Cir. 2017) (citing Molski v. M.J. Cable, Inc., 481 F.3d 724, 728 (9th Cir. 2007)). We may reverse the denial of a new trial only if the district court "reaches a result that is illogical, implausible, or without support in the inferences that may be drawn from the record." Id. (quoting Kode v. Carlson, 596 F.3d 608, 612 (9th Cir. 2010)). "The abuse of discretion standard requires us to uphold a district court's determination that falls within a broad range of permissible conclusions, provided the district court did not apply the law erroneously." Id. (quoting Kode, 596 F.3d at 612).

         The Thicke Parties argue that a new trial is warranted on three grounds: (1) Jury Instructions 42 and 43 were erroneous; (2) the district court abused its discretion in admitting portions of Finell and Dr. Monson's testimony; and (3) the verdict is against the clear weight of the evidence. We disagree, and discuss each ground in turn.

         A. Instructions 42 and 43 Were Not Erroneous.

         We review de novo whether jury instructions state the law accurately, but review a district court's formulation of jury instructions for abuse of discretion. Id. at 1085 (citing Hunter v. County of Sacramento, 652 F.3d 1225, 1232 (9th Cir. 2011)). "In evaluating jury instructions, prejudicial error results when, looking to the instructions as a whole, the substance of the applicable law was [not] fairly and correctly covered." Dang v. Cross, 422 F.3d 800, 805 (9th Cir. 2005) (alteration in original) (quoting Swinton v. Potomac Corp., 270 F.3d 794, 802 (9th Cir. 2001)).

         1. Jury Instruction 42

         The Thicke Parties argue that Instruction 42 allowed the jury to place undue weight on Williams and Thicke's statements claiming inspiration from "Got To Give It Up" and Marvin Gaye. The district court instructed the jurors:

In order to find that the Thicke Parties copied either or both of the Gaye Parties' songs, it is not necessary that you find that the Thicke Parties consciously or deliberately copied either or both of these songs. It is sufficient if you find that the Thicke Parties subconsciously copied either or both of the Gaye Parties' songs.

         Because direct evidence is rare, copying is usually circumstantially proved by a combination of access and substantial similarity. See Swirsky, 376 F.3d at 844. As the Thicke Parties acknowledge, access may be "based on a theory of widespread dissemination and subconscious copying." Three Boys Music, 212 F.3d at 483. In short, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.