Pharrell Williams, an individual; Clifford Harris, Jr., an individual; Robin Thicke, an individual, DBA I Like'em Thicke Music, Plaintiffs-Counter-Defendants-Appellants,
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,
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.
Frankie Christian Gaye, an individual; Marvin Gaye III, an individual; Nona Marvisa Gaye, an individual, Defendants-Counter-Claimants-Appellants.
and Submitted October 6, 2017 Pasadena, California
Amended July 11, 2018
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.
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.
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.
F. McPherson, McPherson Rane LLP, Los Angeles, California,
for Amici Curiae 212 Songwriters, Composers, Musicians, and
Charles Duan, Public Knowledge, Washington, D.C., for Amicus
Curiae Public Knowledge.
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
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
Before: MILAN D. SMITH, JR., MARY H. MURGUIA, and JACQUELINE
H. NGUYEN, Circuit Judges.
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
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."
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.
panel held that the district court's order denying
summary judgment was not reviewable after a full trial on 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
panel held that the district court's award of actual
damages and infringers' profits and its running royalty
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.
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.
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.
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.
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.
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.
SMITH, CIRCUIT JUDGE
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.
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.
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
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.
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.
AND PROCEDURAL BACKGROUND
"Got To Give It Up"
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.
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."
Gayes inherited the copyrights in Marvin Gaye's musical
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.
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."
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.
Gayes counterclaimed against the Thicke Parties, alleging
that "Blurred Lines" infringed their copyright in
"Got To Give It Up, " and added the Interscope Parties
as third-party defendants.
The District Court's Denial of Summary Judgment
district court denied Williams and Thicke's motion for
summary judgment on October 30, 2014.
The District Court's Interpretation of the Copyright Act
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
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.
opined that there is a "constellation" of eight
similarities between "Got To Give It Up" and
"Blurred Lines," consisting of the signature
phrase, hooks,  hooks with backup vocals, "Theme X,
" backup hooks, bass melodies, keyboard
parts, and unusual percussion choices.
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.
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
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.
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.
and Thicke testified, each acknowledging inspiration from
Marvin Gaye and access to "Got To Give It Up."
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.
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.
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
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.
March 10, 2015, after two days of deliberation, the jury
returned mixed general verdicts. The jury found that
Williams, More Water from Nazareth Publishing,  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.
The District Court's Order on Post-Trial Motions
district court ruled on the parties' various post-trial
motions in an omnibus order.
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.
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.
The Judgment and Order on Attorney's Fees and
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.
April 12, 2016, the district court denied the Gayes'
motion for attorney's fees and apportioned costs between
the parties. The parties timely appealed.
begin by discussing the law applicable to this case.
Elements of a Copyright Infringement Claim
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)).
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
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)).
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)).
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." 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.
The Standard of Similarity for Musical Compositions
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.
reject the Thicke Parties' argument that the Gayes'
copyright enjoys only thin protection. Musical compositions
are not confined to a narrow range of
expression. 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.
The Copyright Act of 1909
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).
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." 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
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. 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
The District Court's Order Denying Summary Judgment is
Not Reviewable After a Full Trial on the Merits.
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.
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."
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).
calls into question the continuing viability of our
exception. 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.
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
The District Court Did Not Abuse its Discretion in Denying a
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).
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.
Instructions 42 and 43 Were Not Erroneous.
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)).
Jury Instruction 42
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.
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, ...