885 f.3d 1150marvin gaye iii, an individual; nona marvisa gaye, an individual,...

1150 885 FEDERAL REPORTER, 3d SERIES

The district court found that TDY wassolely responsible for the acts that led tothe environmental contamination at issuehere. Those acts consisted primarily ofTDY’s employees’ failure to clean up dripsand spills of chromium, chlorinated sol-vents, and PCBs, along with the employ-ees’ careless storage and disposal prac-tices, all of which allowed the chemicals toseep into the soil and groundwater beneaththe plant. The district court found thatthese aspects of the plant’s day-to-day op-erations were solely under TDY’s control;they were not controlled or directed by thegovernment.

TDY doesn’t challenge these factualfindings on appeal. Its sole contention isthat, despite these findings, the govern-ment should still bear all or most of theliability for cleaning up the site becausethe contamination occurred while TDY wasperforming government defense contracts.TDY is right that the government must berequired to foot at least a portion of thebill. But I agree with TDY on that scoreonly because, as the court notes, the gov-ernment required TDY to use two of thethree chemicals (chromium and chlorinatedsolvents) at a time when neither TDY northe government had any reason to knowthat these chemicals were hazardous. Ofcourse, because the government did notknow of the hazards posed by the chemi-cals, it can’t be faulted for failing to warnTDY. But equity demands that the govern-ment bear at least some responsibility forhaving required an unsuspecting contrac-tor to use chromium and chlorinated sol-vents in the first place. As far as therecord discloses, those are chemicals TDYmight have chosen not to use if left to itsown devices. (I see no reason to disturbthe district court’s allocation of clean-upcosts with respect to contamination causedby PCBs, since the government did notrequire TDY to use PCBs.)

That the government must, as a matterof equity, be allocated some share of theclean-up costs does not mean that its sharemust be substantial. TDY suggested atoral argument that the district court wouldabuse its discretion on remand if it failedto allocate at least 50% of the clean-upcosts to the government. I don’t thinkthat’s right, given the district court’s un-challenged factual findings. The courtfound that the government was innocent inrequiring use of chromium and chlorinatedsolvents, and that the actions of TDY’semployees caused the contamination aspart of plant operations solely underTDY’s control. In light of those findings,the court remains free on remand to allo-cate the lion’s share of liability to TDY. Itjust has to allocate some portion of theclean-up costs to the government to reflectthe government’s role in mandating theuse of chromium and chlorinated solvents.As long as the court does that, it retainsthe discretion, within a fairly wide band, toarrive at an equitable cost allocation.

,

Pharrell WILLIAMS, an individual;Clifford Harris, Jr., an individual;Robin Thicke, an individual, dba ILike’em Thicke Music, Plaintiffs-Counter-Defendants-Appellants,

and

More Water From Nazareth Publishing,Inc.; Star Trak Entertainment; Inter-scope Records; UMG Recordings, Inc.;Universal Music Distribution, Coun-ter-Defendants-Appellants,

v.

Frankie Christian GAYE, an individual;Marvin Gaye III, an individual; NonaMarvisa Gaye, an individual, Defen-dants-Counter-Claimants-Appellees.

1151WILLIAMS v. GAYECite as 885 F.3d 1150 (9th Cir. 2018)

Pharrell Williams, an individual; Clif-ford Harris, Jr., an individual; RobinThicke, an individual, dba I Like’emThicke Music, Plaintiffs-Counter-De-fendants-Appellees,

and

More Water From Nazareth Publishing,Inc.; Star Trak Entertainment; Inter-scope Records; UMG Recordings, Inc.;Universal Music Distribution, Coun-ter-Defendants-Appellees,

v.Frankie Christian Gaye, an individual;

Marvin Gaye III, an individual; NonaMarvisa Gaye, an individual, Defen-dants-Counter-Claimants-Appellants.

Pharrell Williams, an individual; RobinThicke, an individual, dba I Like’emThicke Music; Clifford Harris, Jr., anindividual, Plaintiffs-Counter-Defen-dants-Appellees,

and

More Water From Nazareth Publishing,Inc.; Star Trak Entertainment; Inter-scope Records; UMG Recordings, Inc.;Universal Music Distribution, Coun-ter-Defendants-Appellees.

v.Frankie Christian Gaye, an individual;

Marvin Gaye III, an individual; NonaMarvisa Gaye, an individual, Defen-dants-Counter-Claimants-Appellants.

No. 15-56880, No. 16-55089, No. 16-55626

United States Court of Appeals,Ninth Circuit.

Argued and Submitted October 6,2017, Pasadena, California

Filed March 21, 2018Background: Three writers, manufactur-er, and distributor of song ‘‘BlurredLines,’’ brought action against owners ofcopyright for song ‘‘Got To Give It Up,’’seeking declaratory judgment of nonin-fringement. Copyright owners counter-

claimed for copyright infringement andadded owners of allegedly infringing soundrecording as third-party defendants. Fol-lowing jury verdict for copyright ownersagainst two writers of allegedly infringingsong, the United States District Court forthe Central District of California, John A.Kronstadt, J., denied writers’ motion forjudgment as a matter of law or new trial,but remitted award of actual damages andprofits, granted copyright owners’ motionfor judgment as a matter of law and over-turned jury verdicts in favor of third writ-er and owners of allegedly infringing song,denied copyright owners’ request for in-junctive relief, awarded copyright ownersrunning royalties, denied copyright own-ers’ motion for attorney fees, and appor-tioned costs between the parties. Partiesappealed.

Holdings: The Court of Appeals, Milan D.Smith, Jr., Circuit Judge, held that:

(1) district court’s denial of writers’ mo-tion for summary judgment was notreviewable following trial on the meritsof claim;

(2) jury instruction did not permit jury toplace undue weight on writers’ state-ments claiming inspiration from copy-righted song;

(3) jury instruction did not instruct jury toconsider unprotectable elements ofcopyrighted song;

(4) district court did not abuse its discre-tion in permitting copyright owners’expert’s testimony;

(5) district court did not abuse its discre-tion in allowing expert to play audio‘‘mash-ups’’ of copyrighted song lyricsand allegedly infringing song’s accom-paniment;

(6) jury’s verdict for owners of copyright-ed song was not against the clearweight of the evidence; and


(7) jury’s award of 50% of publishing reve-nues for infringing song to owners ofcopyrighted song was not based on anunduly speculative hypothetical licenserate of 50%.

Affirmed in part and reversed in part.

1. Copyrights and Intellectual PropertyO51To prevail on a copyright infringe-

ment claim, a plaintiff must show that: (1)he or she owns the copyright in the in-fringed work, and (2) the defendant copiedprotected elements of the copyrightedwork.

2. Copyrights and Intellectual PropertyO83(3.1)A copyright plaintiff may prove copy-

ing with circumstantial, rather than direct,evidence.

3. Copyrights and Intellectual PropertyO83(3.1)Absent direct evidence of copying,

proof of copyright infringement involvesfact-based showings that the defendanthad access to the plaintiff’s work and thatthe two works are substantially similar.

4. Copyrights and Intellectual PropertyO83(3.1)Access and substantial similarity re-

quirements to prove copyright infringe-ment by indirect evidence are inextricablylinked: under the ‘‘inverse ratio rule,’’which operates like a sliding scale, thegreater the showing of access, the lesserthe showing of substantial similarity is re-quired.

See publication Words and Phrasesfor other judicial constructions anddefinitions.

5. Copyrights and Intellectual PropertyO53(1)In determining whether two works

are substantially similar, as required toshow copyright infringement in absence ofdirect evidence of copying, courts use two-

part test for substantial similarity: an ex-trinsic test and an intrinsic test.

6. Copyrights and Intellectual PropertyO83(3.1)For a jury to find substantial similari-

ty of works, as required to show copyrightinfringement by indirect evidence, theremust be evidence on both the extrinsic andintrinsic tests.

7. Copyrights and Intellectual PropertyO89(2)In a copyright infringement action

based on indirect evidence, a district courtapplies only the extrinsic test for deter-mining whether works are substantiallysimilar on a motion for summary judg-ment, as the intrinsic test is reserved ex-clusively for the trier of fact.


based on indirect evidence, the extrinsictest for determining whether works aresubstantially similar is objective: it consid-ers whether two works share a similarityof ideas and expression as measured byexternal, objective criteria.

9. Copyrights and Intellectual PropertyO53(1), 83(3.1)In a copyright infringement action

based on indirect evidence, application ofthe extrinsic test for determining whetherworks are substantially similar requiresanalytical dissection of a work and experttestimony, which, in turn, requires break-ing the works down into their constituentelements, and comparing those elementsfor proof of copying as measured by sub-stantial similarity.


based on indirect evidence, the intrinsic


test for determining whether works aresubstantially similar is subjective: it askswhether the ordinary, reasonable personwould find the total concept and feel of theworks to be substantially similar.

11. Copyrights and Intellectual PropertyO53(1)Because the requirement of substan-

tial similarity in a copyright infringementaction based on indirect evidence is one ofsubstantial similarity to protected ele-ments of the copyrighted work, it is essen-tial to distinguish between the protectedand unprotected material in a plaintiff’swork.


based on indirect evidence, substantialsimilarity of works can be found in a com-bination of elements, even if those ele-ments are individually unprotected.


based on indirect evidence, a trier of factmay find that the over-all impact and ef-fect indicate substantial appropriation,even if any one similarity taken by itselfseems trivial.

14. Copyrights and Intellectual PropertyO12(2)According to the ‘‘scenes a faire doc-

trine,’’ when certain commonplace expres-sions are indispensable and naturally asso-ciated with the treatment of a given idea,those expressions are treated like ideasand therefore not protected by copyright.

See publication Words and Phrasesfor other judicial constructions anddefinitions.

15. Copyrights and Intellectual PropertyO53(1)If there is a wide range of expression

in a copyrighted work, then copyright pro-tection is broad and a work will infringe if

it is substantially similar to the copyright-ed work.

16. Copyrights and Intellectual PropertyO53(1)If there’s only a narrow range of ex-

pression in a copyrighted work, then copy-right protection is thin and a work must bevirtually identical to infringe.

17. Copyrights and Intellectual PropertyO8Copyrighted song ‘‘Got To Give It

Up’’ had broad copyright protection, suchthat copyright owners did not need toprove virtual identity of copyrighted songto allegedly infringing song to substantiatetheir infringement action, as musical com-positions were not confined to a narrowrange of expression but was comprised ofa large array of elements.

18. Copyrights and Intellectual PropertyO53(1)Even the de minimis exception to

copyright infringement, which renders in-significant copying inactionable, does notrequire a standard of similarity as exactingas virtual identity.

19. Copyrights and Intellectual PropertyO8Music is not capable of ready classifi-

cation into only five or six constituent ele-ments, but is instead comprised of a largearray of elements, some combination ofwhich is protectable by copyright.

20. Copyrights and Intellectual PropertyO66As there is no one magical combina-

tion of factors that will automatically sub-stantiate a musical infringement suit, andas each allegation of infringement will beunique, the extrinsic test for determiningwhether works are substantially similar ismet, so long as the plaintiff can demon-strate, through expert testimony, that the


similarity was substantial to protected ele-ments of the copyrighted work.

21. Copyrights and Intellectual PropertyO8, 10.2Sound recordings and musical compo-

sitions are separate works with their owndistinct copyrights.

22. Declaratory Judgment O392.1Argument made by writers of alleged-

ly infringing song, that district court erredin its application of the extrinsic test forsubstantial similarity of works, did notpresent purely legal issues capable of reso-lution with reference only to undisputedfacts, and thus district court’s denial ofwriters’ motion for summary judgment ontheir claim for declaratory judgment ofnoninfringement of copyrighted song, ‘‘GotTo Give It Up,’’ was not reviewable follow-ing trial on the merits of claim; districtcourt’s application of extrinsic test of simi-larity was a factbound inquiry.

23. Federal Courts O3546(2)A party may not appeal an order de-

nying summary judgment after a full trialon the merits: an order denying summaryjudgment is simply a step along the routeto final judgment and once the case pro-ceeds to trial, the full record developed incourt supersedes the record existing at thetime of the summary-judgment motion.

24. Federal Courts O3606(1)The Court of Appeals reviews the dis-

trict court’s denial of a motion for a newtrial for abuse of discretion.

25. Federal Courts O3606(1)The Court of Appeals may reverse the

denial of a new trial only if the districtcourt reaches a result that is illogical, im-plausible, or without support in the infer-ences that may be drawn from the record.

26. Federal Courts O3565The abuse of discretion standard re-

quires the Court of Appeals to uphold adistrict court’s determination that falls

within a broad range of permissible conclu-sions, provided the district court did notapply the law erroneously.

27. Federal Courts O3601

The Court of Appeals reviews de novowhether jury instructions state the lawaccurately, but reviews a district court’sformulation of jury instructions for abuseof discretion.

28. Federal Civil Procedure O2182.1

In evaluating jury instructions, preju-dicial error results when, looking to theinstructions as a whole, the substance ofthe applicable law was not fairly and cor-rectly covered.

29. Copyrights and Intellectual PropertyO88

In copyright infringement action thatwas based on indirect evidence of copying,jury instruction stating that to find thatwriters of allegedly infringing song copieda copyrighted song, it was not necessary tofind that writers consciously or deliberate-ly copied the song, but it was sufficient tofind that writers subconsciously copied thesong, did not permit jury to place undueweight on writers’ statements claiming in-spiration from copyrighted song ‘‘Got ToGive It Up.’’

30. Copyrights and Intellectual PropertyO83(3.1)

Access to a copyrighted work, as re-quired to find infringement by indirect evi-dence, may be based on a theory of wide-spread dissemination and subconsciouscopying.

31. Copyrights and Intellectual PropertyO52

There is no scienter requirement tofinding infringement of a copyrighted workby indirect evidence.


32. Copyrights and Intellectual PropertyO88Jury instruction stating that jury did

not need to find that writers of allegedlyinfringing song consciously or deliberate-ly copied a copyrighted song, but that itwas sufficient to find that writers subcon-sciously copied the song, was appropriatein action for infringement of copyrightedsong ‘‘Got To Give It Up,’’ based on indi-rect evidence of copying; although writ-ers conceded access to copyrighted song,access remained relevant to question ofdegree of substantial similarity that wasrequired to prove copying under inverseratio rule.

33. Copyrights and Intellectual PropertyO88Jury instruction defining ‘‘extrinsic

similarity’’ of copyrighted works and men-tioning testimony that was given regardingsimilarities and differences between vari-ous elements of songs at issue did notinstruct jury to consider unprotectable ele-ments of copyrighted song ‘‘Got To Give ItUp;’’ although court mentioned testimonyregarding elements of copyrighted songthat were arguably not protectable, in-struction did not tell jury it had to consid-er such elements, and whether such ele-ments were in fact a part of the sheetmusic that was actually deposited with theCopyright Office, and thus protected, wasa factual dispute for the jury as well.

34. Federal Courts O3598(3)The Court of Appeals reviews the dis-

trict court’s evidentiary rulings for abuseof discretion.

35. Copyrights and Intellectual PropertyO83(2), 88Question of whether to credit testimo-

ny of expert presented by owner of copy-righted song ‘‘Got To Give It Up,’’ orexpert presented by writers of allegedlyinfringing song regarding whether sheetmusic deposited with the Copyright Office

contained certain elements that were pres-ent in sound recording of copyrightedsong, such that those elements were pro-tected by copyright, was properly left forjury to resolve, and thus district court didnot abuse its discretion in permitting copy-right owners’ expert’s testimony, despiteargument that expert based her testimonyon unprotectable elements of song; expertsfor writers and owners both referencedsound recording in their testimony andboth agreed that sheet music required in-terpretation, but disagreed on how to in-terpret the sheet music deposited with theCopyright Office.

36. Copyrights and Intellectual PropertyO83(2)District court did not abuse its discre-

tion in allowing expert, offered by ownersof copyrighted song ‘‘Got To Give It Up,’’to play audio ‘‘mash-ups’’ of copyrightedsong lyrics and allegedly infringing song’saccompaniment and vice versa, despiteclaim by writers of allegedly infringingsong that the mash-ups contained unpro-tectable elements that appeared in soundrecording of copyrighted song, but not insheet music that had been deposited withCopyright Office, as required for protec-tion; witness testified that there werestructural similarities between the twosongs at a sectional level and a phrasinglevel, and used the mash-ups to demon-strate the shared harmonic and melodiccompatibility, and expert was cross-exam-ined on her opinion, allowing jury to weighher testimony as it saw fit.

37. Copyrights and Intellectual PropertyO83(6)Jury’s verdict for owners of copyright-

ed song ‘‘Got To Give It Up,’’ in infringe-ment action against writers of accusedsong, was not against the clear weight ofthe evidence, and thus district court didnot abuse its discretion in denying writers’motion for a new trial; copyright owners’


expert testified that nearly every bar ofaccused song contained an area of similari-ty to copyrighted song, and even settingaside elements of copyrighted song thatwere allegedly unprotected, experts testi-fied to multiple other areas of extrinsicsimilarity, including songs’ signaturephrases, hooks, bass melodies, word paint-ing, placement of rap and ‘‘parlando’’ sec-tions, and structural similarities on a sec-tional and phrasing level.

38. Federal Courts O3606(1)

So long as there was some reasonablebasis for the jury’s verdict, the Court ofAppeals will not reverse the district court’sdenial of a motion for a new trial.


Where the basis of a ruling on a mo-tion for new trial is that the verdict is notagainst the weight of the evidence, thedistrict court’s denial of the motion is vir-tually unassailable; the Court of Appealsreverses only when there is an absoluteabsence of evidence to support the jury’sverdict. Fed. R. Civ. P. 59.


The Court of Appeals affords greatdeference to a jury’s award of damagesand will uphold the award unless it isclearly not supported by the evidence oronly based on speculation or guesswork.

41. Federal Courts O3635

The Court of Appeals will uphold anaward of hypothetical-license damages in acopyright infringement action provided theamount is not based on undue speculation.

42. Copyrights and Intellectual PropertyO87(2)

The touchstone for hypothetical-li-cense damages for copyright infringementis the range of the license’s reasonablemarket value.

43. Copyrights and Intellectual PropertyO87(2)Jury’s award of 50% of publishing

revenues for infringing song to owners ofcopyrighted song ‘‘Got To Give It Up’’was not based on an unduly speculativehypothetical license rate of 50%; rather,copyright owners presented testimony byindustry expert with over 20 years of ex-perience in negotiating and assigning val-uations for the use of portions of oldermusical compositions in new compositions,who opined that the value of the use ofcopyrighted song would have been 50%had the writers sought a license pre-re-lease, and would have been between 75%and 100% had they sought it post-release.

44. Federal Courts O3635The Court of Appeals reviews an ap-

portionment of a copyright infringer’sprofits for clear error.

45. Copyrights and Intellectual PropertyO83(1)The burden is on the defendant in a

copyright infringement action to provewhat percentage of its profits is not attrib-utable to infringement.

46. Copyrights and Intellectual PropertyO83(1), 87(2)Jury’s choice to apportion approxi-

mately 40% of non-publishing profitsearned by writers of infringing song toowners of copyrighted song ‘‘Got To GiveIt Up’’ did not represent clear error; al-though writers’ expert testified that lessthan 5% of infringing song contained ele-ments allegedly similar to ones in copy-righted song, writers bore the burden ofproof on what percentage of their profitswas not attributable to infringement, andjury was free to accept writers’ expert’stestimony or instead credit copyright own-ers’ expert’s testimony that nearly everymeasure of infringing song contained ele-ments similar to copyrighted song.


47. Federal Courts O3615The Court of Appeals reviews a dis-

trict court’s decision to award equitablerelief for abuse of discretion.

48. Federal Courts O3603(2)Findings of fact are reviewed for clear

error.

49. Copyrights and Intellectual PropertyO87(2)District court’s award of a 50% royal-

ty rate to owners of copyrighted song ‘‘GotTo Give It Up’’ from writers of infringingsong was not an abuse of discretion, wherecopyright owners presented testimony byindustry expert with over 20 years of expe-rience in negotiating and assigning valua-tions for the use of portions of older musi-cal compositions in new compositions, whoopined that the value of the use of copy-righted song would have been 50% had thewriters sought a license pre-release, andwould have been between 75% and 100%had they sought it post-release.

50. Federal Courts O3605The Court of Appeals reviews de novo

a district court’s grant of judgment as amatter of law.

51. Federal Courts O3602The Court of Appeals reviews de novo

a trial judge’s decision to disrupt a juryverdict on the basis that an erroneousinstruction resulted in inconsistent ver-dicts.

52. Copyrights and Intellectual PropertyO89(1)District court erred in overturning

jury’s general verdicts finding in favor ofwriter and owners of allegedly infringingsong on basis that erroneous jury instruc-tion resulted in inconsistent verdicts, ininfringement action brought by owners ofcopyright for song ‘‘Got To Give It Up,’’where copyright owners had waived anychallenge to the consistency of the jury’sgeneral verdicts by not objecting to incon-

sistent verdict prior to dismissal of thejury and court did not have authority toupset jury’s verdicts due to copyright own-ers’ failure to file a motion for judgment asa matter of law before case was submittedto the jury. Fed. R. Civ. P. 50(a), 50(b).

53. Federal Civil Procedure O2191A party waives its objection to the

jury’s verdict by not objecting to the al-leged inconsistency prior to the dismissalof the jury.

54. Federal Civil Procedure O2602A party must make a motion for judg-

ment as a matter of law before a case issubmitted to the jury. Fed. R. Civ. P.50(a).

55. Federal Civil Procedure O2602Requirement that a party make a mo-

tion for judgment as a matter of law be-fore the case is submitted to the jury inorder to make a motion for judgment as amatter of law following trial may be satis-fied by an ambiguous or inartfully mademotion before case is submitted to thejury. Fed. R. Civ. P. 50(a), 50(b).

56. Federal Civil Procedure O2197District courts may reconcile inconsis-

tent general verdicts resulting from anerroneous jury instruction without intrud-ing upon the jury’s fact-finding role onlyunder very limited circumstances: wherethere is an identifiable error that onlycould have affected one of the verdicts,where the necessary factual findings canbe determined from the pattern of ver-dicts, and where there is nothing to begained from a new trial.

57. Copyrights and Intellectual PropertyO77There was no evidence supporting

theory of vicarious liability of co-writer ofallegedly infringing song, and thus districtcourt erred in entering judgment against


co-writer in infringement action broughtby owners of copyrighted song, ‘‘Got ToGive It Up,’’ after jury rendered generalverdict in favor of co-writer, where co-writer independently wrote and recorded arap verse that was added to the infringingsong seven months after it was written,neither writer of infringing song expectedthe later addition of the rap verse or hadanything to do with its creation, and therewas no evidence that co-writer had a rightto stop the infringing conduct or the abilityto do so.

58. Copyrights and Intellectual PropertyO77To be vicariously liable for copyright

infringement, one must have: (1) the rightand ability to supervise the infringing con-duct, and (2) a direct financial interest inthe infringing activity.

59. Copyrights and Intellectual PropertyO77A vicarious copyright infringer exer-

cises control over a direct infringer whenhe has both a legal right to stop or limitthe directly infringing conduct, as well asthe practical ability to do so.

60. Federal Courts O3617The Court of Appeals reviews a dis-

trict court’s decision on attorney’s fees forabuse of discretion.


tion in denying motion for attorney feesmade by owners of copyrighted song ‘‘GotTo Give It Up,’’ following jury verdict intheir favor and against writers of infring-ing song; court took the specific circum-stances of the case into consideration, in-cluding the degree of success obtained, thepurposes of the Copyright Act, the chillingeffect of attorney’s fees, motivation, frivo-lousness, factual and legal unreasonable-ness, compensation, and deterrence.

62. Federal Courts O3617The Court of Appeals reviews the dis-

trict court’s award of costs for abuse ofdiscretion.

63. Federal Civil Procedure O2727A party in whose favor judgment is

rendered is generally the prevailing partyfor purposes of awarding costs under Fed-eral Rules of Civil Procedure. Fed. R.Civ. P. 54(d).


tion in apportioning costs among the par-ties in copyright owners’ action againstwriters of allegedly infringing songs,where district court entered judgment infavor of copyright owners with regard toone song, but in favor of owners of alleged-ly infringing songs with regard to othersong. Fed. R. Civ. P. 54(d)(1).

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

Kathleen M. Sullivan (argued) and El-lyde R. Thompson, Quinn Emanuel Urqu-hart & Sullivan LLP, New York, NewYork; Daniel C. Posner, Quinn EmanuelUrquhart & Sullivan LLP, Los Angeles,California; Howard E. King, Stephen D.Rothschild, and Seth Miller, King HolmesPaterno & Soriano LLP, Los Angeles, Cal-ifornia; for Plaintiffs-Appellants/Cross-Ap-pellees Pharrell Williams, Clifford HarrisJr., Robin Thicke, and More Water fromNazareth Publishing Inc.

Mark E. Haddad (argued), Amanda R.Farfel, Michelle B. Goodman, Rollin A.Ransom, and Peter I. Ostroff, Sidley Aus-tin LLP, Los Angeles, California, for De-fendants-Appellants/Cross-Appellees Star


Trak Entertainment, Interscope Records,UMG Recordings Inc., Universal MusicDistribution.

Lisa Blatt (argued), Arnold & PorterLLP, Washington, D.C.; Richard S.Busch (argued), Sara R. Ellis, and Ste-ven C. Douse, King & Ballow, Nashville,Tennessee; Daniel B. Asimow and MartinR. Glick, Arnold & Porter LLP, SanFrancisco, California; Paul H. Duvall,King & Ballow, San Diego, California;Mark L. Block, Wargo & French LLP,Los Angeles, California; Paul N. Philips,Law Offices of Paul N. Philips APLC,West Hollywood, California; for Defen-dants-Appellees/Cross-Appellants FrankieChristian Gaye, Marvin Gaye III, andNona Marvisa Gaye.

Kenneth D. Freundlich, FreundlichLaw, Encino, California, for Amici CuriaeMusicologists.

Edwin F. McPherson, McPherson RaneLLP, Los Angeles, California, for AmiciCuriae 212 Songwriters, Composers, Musi-cians, and Producers.

Charles Duan, Public Knowledge, Wash-ington, D.C., for Amicus Curiae PublicKnowledge.

Sean M. O’Connor, Lateef Mtima, andSteven D. Jamar, Institute for IntellectualProperty and Social Justice Inc., Rockville,Maryland, for Amicus Curiae Institute forIntellectual Property and Social Justice;Musicians and Composers; and Law, Mu-sic, and Business Professors.

Bernard A. Burk, Director, LawyeringSkills Program, William H. Bowen Schoolof Law, University of Arkansas at LittleRock, Little Rock, Arkansas; Howard Bar-ry Abrams, University of Detroit MercySchool of Law, Detroit, Michigan; for Ami-ci Curiae Musicologists.

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

Dissent by Judge Nguyen

OPINION

M. SMITH, Circuit Judge:

After a seven-day trial and two days ofdeliberation, a jury found that PharrellWilliams, Robin Thicke, and Clifford Har-ris, Jr.’s song ‘‘Blurred Lines,’’ the world’sbest-selling single in 2013, infringedFrankie Christian Gaye, Nona MarvisaGaye, and Marvin Gaye III’s copyright inMarvin Gaye’s 1977 hit song ‘‘Got To GiveIt Up.’’ Three consolidated appeals fol-lowed.

Appellants and Cross-AppelleesWilliams, Thicke, Harris, and More Waterfrom Nazareth Publishing, Inc. (collective-ly, Thicke Parties) appeal from the districtcourt’s judgment. They urge us to reversethe district court’s denial of their motionfor summary judgment and direct the dis-trict court to enter judgment in their fa-vor. In the alternative, they ask us tovacate the judgment and remand the casefor a new trial, on grounds of instructionalerror, improper admission of expert testi-mony, and lack of evidence supporting theverdict. If a new trial is not ordered, theyrequest that we reverse or vacate thejury’s awards of actual damages and in-fringer’s profits, and the district court’simposition of a running royalty. Finally,they seek reversal of the judgment againstHarris, challenging the district court’s de-cision to overturn the jury’s general ver-dict finding in Harris’s favor.

Appellants and Cross-Appellees Inter-scope Records, UMG Recordings, Inc.,Universal Music Distribution, and StarTrak, LLC (collectively, Interscope Par-ties) appeal from the district court’s judg-ment. They urge us to reverse the judg-


ment against them, challenging the districtcourt’s decision to overturn the jury’s gen-eral verdict finding in their favor.

Appellees and Cross-Appellants FrankieChristian Gaye, Nona Marvisa Gaye, andMarvin Gaye III (collectively, Gayes) ap-peal from the district court’s order onattorney’s fees and costs. They requestthat we vacate and remand for reconsider-ation the district court’s denial of attor-ney’s fees, and award them their costs infull. The Gayes also protectively cross-ap-peal the district court’s ruling limiting thescope of the Gayes’ compositional copy-right to the four corners of the sheet musicdeposited with the United States Copy-right Office. In the event a new trial isordered, the Gayes urge us to hold thatMarvin Gaye’s studio recording of ‘‘Got ToGive It Up,’’ rather than the deposit copy,establishes the scope of the Gayes’ copy-right under the Copyright Act of 1909.

We have jurisdiction over this appealpursuant to 28 U.S.C. § 1291. Our lawrequires that we review this case, whichproceeded to a full trial on the merits inthe district court, under deferential stan-dards of review. We accordingly decidethis case on narrow grounds, and affirm inpart and reverse in part.

FACTUAL AND PROCEDURALBACKGROUND

A. ‘‘Got To Give It Up’’

In 1976, Marvin Gaye recorded the song‘‘Got To Give It Up’’ in his studio. ‘‘Got ToGive It Up’’ reached number one on Bill-board’s Hot 100 chart in 1977, and remainspopular today.

In 1977, Jobete Music Company, Inc.registered ‘‘Got To Give It Up’’ with theUnited States Copyright Office and depos-

ited six pages of handwritten sheet musicattributing the song’s words and music toMarvin Gaye. Marvin Gaye did not writeor fluently read sheet music, and did notprepare the deposit copy. Instead, an un-identified transcriber notated the sheetmusic after Marvin Gaye recorded ‘‘Got ToGive It Up.’’

The Gayes inherited the copyrights inMarvin Gaye’s musical compositions.

B. ‘‘Blurred Lines’’

In June 2012, Pharrell Williams andRobin Thicke wrote and recorded ‘‘BlurredLines.’’ Clifford Harris, Jr., known popu-larly as T.I., separately wrote and record-ed a rap verse for ‘‘Blurred Lines’’ thatwas added to the track seven months later.‘‘Blurred Lines’’ was the best-selling singlein the world in 2013.

Thicke, Williams, and Harris co-own themusical composition copyright in ‘‘BlurredLines.’’ Star Trak and Interscope Recordsco-own the sound recording of ‘‘BlurredLines.’’ Universal Music Distribution man-ufactured and distributed ‘‘Blurred Lines.’’

C. The Action

The Gayes made an infringement de-mand on Williams and Thicke after hear-ing ‘‘Blurred Lines.’’ Negotiations failed,prompting Williams, Thicke, and Harris tofile suit for a declaratory judgment of non-infringement on August 15, 2013.

The Gayes counterclaimed against theThicke Parties, alleging that ‘‘BlurredLines’’ infringed their copyright in ‘‘Got ToGive It Up,’’1 and added the InterscopeParties as third-party defendants.

1. The Gayes asserted a second counterclaimalleging that Thicke’s song ‘‘Love After War’’infringed their copyright in Marvin Gaye’scomposition ‘‘After the Dance.’’ The jury

found against the Gayes on the second coun-terclaim, and judgment was entered againstthem. On appeal, the second counterclaim isrelevant only to the issue of costs.


D. The District Court’s Denial ofSummary Judgment

The district court denied Williams andThicke’s motion for summary judgment onOctober 30, 2014.

1. The District Court’s Interpretationof the Copyright Act of 1909

The district court ruled that the Gayes’compositional copyright, which is governedby the Copyright Act of 1909, did notextend to the commercial sound recordingof ‘‘Got To Give It Up,’’ and protected onlythe sheet music deposited with the Copy-right Office. The district court accordinglylimited its review of the evidence to thedeposit copy, and concluded there weregenuine issues of material fact.

2. The Evidence

The Thicke Parties relied upon the opin-ion of musicologist Sandy Wilbur. TheGayes relied upon the opinions of Dr. In-grid Monson, the Quincy Jones Professorof African American Music at HarvardUniversity, and musicologist Judith Finell.The experts disagreed sharply in theiropinions, which they articulated in lengthyreports.

Finell opined that there is a ‘‘constella-tion’’ of eight similarities between ‘‘Got ToGive It Up’’ and ‘‘Blurred Lines,’’ consist-ing of the signature phrase, hooks,2 hookswith backup vocals, ‘‘Theme X,’’ 3 backuphooks, bass melodies, keyboard parts, andunusual percussion choices.

Wilbur opined that there are no substan-tial similarities between the melodies,rhythms, harmonies, structures, and lyricsof ‘‘Blurred Lines’’ and ‘‘Got To Give ItUp,’’ and disputed each area of similarityFinell identified. The district court com-pared Finell’s testimony with Wilbur’s and,

pursuant to the extrinsic test under copy-right law, meticulously filtered out ele-ments Wilbur opined were not in the de-posit copy, such as the backup vocals,‘‘Theme X,’’ descending bass line, key-board rhythms, and percussion parts.

The district court also filtered out sever-al unprotectable similarities Dr. Monsonidentified, including the use of a cowbell,hand percussion, drum set parts, back-ground vocals, and keyboard parts. Afterfiltering out those elements, the districtcourt considered Dr. Monson’s analysis ofharmonic and melodic similarities betweenthe songs, and noted differences betweenWilbur’s and Dr. Monson’s opinions.

After performing its analytical dissec-tion, as part of the extrinsic test, the dis-trict court summarized the remaining ar-eas of dispute in the case. The districtcourt identified disputes regarding thesimilarity of the songs’ signature phrases,hooks, bass lines, keyboard chords, har-monic structures, and vocal melodies. Con-cluding that genuine issues of material factexisted, the district court denied Williamsand Thicke’s motion for summary judg-ment.

E. Trial

The case proceeded to a seven-day trial.The district court ruled before trial thatthe Gayes could present sound recordingsof ‘‘Got To Give It Up’’ edited to captureonly elements reflected in the depositcopy. Consequently, the commercial soundrecording of ‘‘Got To Give It Up’’ was notplayed at trial.

Williams and Thicke testified, each ac-knowledging inspiration from Marvin Gayeand access to ‘‘Got To Give It Up.’’

2. According to Finell, the term ‘‘hook’’ refersto the most important and memorable melod-ic material of a piece of popular music.

3. Finell named a repeated four-note backupvocal in ‘‘Got To Give It Up’’ as ‘‘Theme X.’’


Finell testified that ‘‘Blurred Lines’’ and‘‘Got To Give It Up’’ share many similari-ties, including the bass lines, keyboardparts, signature phrases, hooks, ‘‘ThemeX,’’ bass melodies, word painting, and theplacement of the rap and ‘‘parlando’’ sec-tions in the two songs. She opined thatnearly every bar of ‘‘Blurred Lines’’ con-tains an element similar to ‘‘Got To Give ItUp.’’ Although the district court had fil-tered out ‘‘Theme X,’’ the descending bassline, and the keyboard rhythms as unpro-tectable at summary judgment, Finell tes-tified that those elements were in the de-posit copy.

Dr. Monson played three audio-engi-neered ‘‘mash-ups’’ she created to showthe melodic and harmonic compatibility be-tween ‘‘Blurred Lines’’ and ‘‘Got To Give ItUp.’’ She testified that the two songsshared structural similarities on a sectionaland phrasing level.

Wilbur opined that the two songs arenot substantially similar and disputed Fi-nell and Dr. Monson’s opinions. Wilburprepared and played a sound recordingcontaining her rendition of the depositcopy of ‘‘Got To Give It Up.’’

Neither the Thicke Parties nor theGayes made a motion for judgment as amatter of law pursuant to Federal Rule ofCivil Procedure 50(a) before the case wassubmitted to the jury.

On March 10, 2015, after two days ofdeliberation, the jury returned mixed gen-eral verdicts.4 The jury found thatWilliams, More Water from Nazareth Pub-lishing,5 and Thicke infringed the Gayes’copyright in ‘‘Got To Give It Up.’’ In con-trast, the jury found that Harris and theInterscope Parties were not liable for in-fringement. The jury awarded the Gayes

$4 million in actual damages, $1,610,455.31in infringer’s profits from Williams andMore Water from Nazareth Publishing,and $1,768,191.88 in infringer’s profitsfrom Thicke.

F. The District Court’s Order onPost–Trial Motions

The district court ruled on the parties’various post-trial motions in an omnibusorder.

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

The Gayes filed three motions, seeking(1) a declaration that Harris and the Inter-scope Parties were liable for infringement;(2) injunctive relief or, in the alternative,ongoing royalties; and (3) prejudgment in-terest. The district court construed theGayes’ motion for declaratory relief as apost-trial motion for judgment as a matterof law, and granted the motion, overturn-ing the jury’s general verdicts in favor ofHarris and the Interscope Parties. Thedistrict court denied the Gayes’ request forinjunctive relief, but awarded them a run-ning royalty of 50% of future songwriterand publishing revenues from ‘‘BlurredLines.’’ The district court granted in partthe Gayes’ motion for prejudgment inter-est.

G. The Judgment and Order on At-torney’s Fees and Costs

The district court entered judgment onDecember 2, 2015. The court awarded the

4. Although the verdict forms are captioned‘‘Special Verdict,’’ they are functionally gen-eral verdict forms. See Zhang v. Am. GemSeafoods, Inc., 339 F.3d 1020, 1031 (9th Cir.2003) (‘‘If the jury announces only its ultimate

conclusions, it returns an ordinary generalverdict[.]’’).

5. More Water From Nazareth Publishing, Inc.collects royalties on Williams’ behalf.


Gayes $3,188,527.50 in actual damages,profits of $1,768,191.88 against Thicke and$357,630.96 against Williams and MoreWater from Nazareth Publishing, and arunning royalty of 50% of future songwri-ter and publishing revenues received byWilliams, Thicke, and Harris.

On April 12, 2016, the district court de-nied the Gayes’ motion for attorney’s feesand apportioned costs between the parties.The parties timely appealed.

ANALYSIS

I. Governing Law

We begin by discussing the law applica-ble to this case.

A. Elements of a Copyright Infringe-ment Claim

[1–3] To prevail on a copyright in-fringement claim, a plaintiff must showthat (1) he or she owns the copyright inthe infringed work, and (2) the defendantcopied protected elements of the copy-righted work. Swirsky v. Carey, 376 F.3d841, 844 (9th Cir. 2004). A copyright plain-tiff may prove copying with circumstantial,rather than direct, evidence. Three BoysMusic Corp. v. Bolton, 212 F.3d 477, 481(9th Cir. 2000). ‘‘Absent direct evidence ofcopying, proof of infringement involvesfact-based showings that the defendanthad ‘access’ to the plaintiff’s work and thatthe two works are ‘substantially similar.’ ’’Id. (quoting Smith v. Jackson, 84 F.3d1213, 1218 (9th Cir. 1996) ).

[4] Access and substantial similarityare ‘‘inextricably linked.’’ Id. at 485. Weadhere to the ‘‘inverse ratio rule,’’ whichoperates like a sliding scale: The greaterthe showing of access, the lesser the show-ing of substantial similarity is required.6

See Swirsky, 376 F.3d at 844; Three BoysMusic, 212 F.3d at 485. Williams andThicke readily admitted at trial that theyhad a high degree of access to ‘‘Got ToGive It Up.’’ The Gayes’ burden of proof ofsubstantial similarity is lowered according-ly. See Swirsky, 376 F.3d at 844–45; seealso Metcalf v. Bochco, 294 F.3d 1069, 1075(9th Cir. 2002) (‘‘The [plaintiffs’] case isstrengthened considerably by [the defen-dant’s] concession of access to theirworks.’’).

[5–7] We use a two-part test for sub-stantial similarity: an extrinsic test and anintrinsic test. Swirsky, 376 F.3d at 845.For a jury to find substantial similarity,there must be evidence on both the extrin-sic and intrinsic tests. Id. (citing Rice v.Fox Broad. Co., 330 F.3d 1170, 1174 (9thCir. 2003) ). A district court applies onlythe extrinsic test on a motion for summaryjudgment, as the intrinsic test is reservedexclusively for the trier of fact. Benay v.Warner Bros. Entm’t, Inc., 607 F.3d 620,624 (9th Cir. 2010).

[8, 9] The extrinsic test is objective.Swirsky, 376 F.3d at 845. It ‘‘considerswhether two works share a similarity ofideas and expression as measured by ex-ternal, objective criteria.’’ Id. Applicationof ‘‘[t]he extrinsic test requires ‘analyticaldissection of a work and expert testimo-ny.’ ’’ Id. (quoting Three Boys Music, 212F.3d at 485). An analytical dissection, inturn, ‘‘requires breaking the works ‘downinto their constituent elements, and com-paring those elements for proof of copyingas measured by ‘‘substantial similarity.’’ ’ ’’Id. (quoting Rice v. Fox Broad. Co., 148F.Supp.2d 1029, 1051 (C.D. Cal. 2001) ).

6. To be clear, we do not ‘‘redefin[e] the test ofsubstantial similarity here,’’ or negate the re-quirement that there be substantial similarity.See Three Boys Music, 212 F.3d at 486. Al-

though the dissent criticizes the inverse ratiorule, the rule is binding precedent under ourcircuit law, and we are bound to apply it.


[10] The intrinsic test, on the otherhand, is subjective. Three Boys Music, 212F.3d at 485. It ‘‘asks ‘whether the ordi-nary, reasonable person would find thetotal concept and feel of the works to besubstantially similar.’ ’’ Id. (quoting Pasil-las v. McDonald’s Corp., 927 F.2d 440, 442(9th Cir. 1991) ).

[11–14] ‘‘Because the requirement isone of substantial similarity to protectedelements of the copyrighted work, it isessential to distinguish between the pro-tected and unprotected material in a plain-tiff’s work.’’7 Swirsky, 376 F.3d at 845.Still, ‘‘substantial similarity can be found ina combination of elements, even if thoseelements are individually unprotected.’’ Id.at 848; see also Metcalf, 294 F.3d at 1074(‘‘Each note in a scale, for example, is notprotectable, but a pattern of notes in atune may earn copyright protection.’’);Three Boys Music, 212 F.3d at 485–86(upholding jury’s finding of substantialsimilarity based on ‘‘a combination of un-protectible elements’’). This principle findsparticular relevance in application of theintrinsic test, as a trier of fact may ‘‘findthat the over-all impact and effect indicatesubstantial appropriation,’’ even if ‘‘anyone similarity taken by itself seems trivi-al.’’ 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 alsoThree Boys Music, 212 F.3d at 485.

B. The Standard of Similarity forMusical Compositions

[15, 16] We have distinguished be-tween ‘‘broad’’ and ‘‘thin’’ copyright protec-tion based on the ‘‘range of expression’’involved. Mattel, Inc. v. MGA Entm’t, Inc.,616 F.3d 904, 913–14 (9th Cir. 2010). ‘‘Ifthere’s a wide range of expression TTT,then copyright protection is ‘broad’ and awork will infringe if it’s ‘substantially simi-lar’ to the copyrighted work.’’ Id. (citationomitted). On the other hand, ‘‘[i]f there’sonly a narrow range of expression TTT,then copyright protection is ‘thin’ and awork must be ‘virtually identical’ to in-fringe.’’ Id. at 914 (citation omitted). Toillustrate, there are a myriad of ways tomake an ‘‘aliens-attack movie,’’ but ‘‘thereare only so many ways to paint a redbouncy ball on blank canvas.’’ Id. at 913–14. Whereas the former deserves broadcopyright protection, the latter merits onlythin copyright protection. See id.

[17–20] We reject the Thicke Parties’argument that the Gayes’ copyright enjoysonly thin protection. Musical compositionsare not confined to a narrow range ofexpression.8 See Swirsky, 376 F.3d at 849(noting that ‘‘[m]usic TTT is not capable ofready classification into only five or sixconstituent elements,’’ but ‘‘is comprised ofa large array of elements’’). They are un-

7. ‘‘Copyright protection subsists TTT in origi-nal works of authorship,’’ including ‘‘musicalworks’’ and ‘‘any accompanying words,’’ thatare ‘‘fixed in any tangible medium of expres-sion.’’ 17 U.S.C. § 102(a). Generally speaking,copyright law does not protect ideas, but rath-er, protects the expression of ideas. See id.§ 102(b); Rice, 330 F.3d at 1174. For exam-ple, elements of an original work of author-ship may be unprotectable by reason of thescenes a faire doctrine. See Swirsky, 376 F.3dat 849–50. According to that doctrine, ‘‘whencertain commonplace expressions are indis-pensable and naturally associated with the

treatment of a given idea, those expressionsare treated like ideas and therefore not pro-tected by copyright.’’ Id. at 850.

8. Even the de minimis exception, which ren-ders insignificant copying inactionable, doesnot require a standard of similarity as exact-ing as virtual identity. See VMG Salsoul, LLCv. Ciccone, 824 F.3d 871, 878 (9th Cir. 2016)(‘‘A ‘use is de minimis only if the averageaudience would not recognize the appropria-tion.’ ’’ (quoting Newton v. Diamond, 388 F.3d1189, 1193 (9th Cir. 2004) ) ).


like a page-shaped computer desktop icon,see Apple Computer, Inc. v. MicrosoftCorp., 35 F.3d 1435, 1444 (9th Cir. 1994),or a ‘‘glass-in-glass jellyfish sculpture,’’ Sa-tava v. Lowry, 323 F.3d 805, 810 (9th Cir.2003). Rather, as we have observed previ-ously, ‘‘[m]usic TTT is not capable of readyclassification into only five or six constitu-ent elements,’’ but is instead ‘‘comprised ofa large array of elements, some combina-tion of which is protectable by copyright.’’Swirsky, 376 F.3d at 849. As ‘‘[t]here is noone magical combination of TTT factorsthat will automatically substantiate a musi-cal infringement suit,’’ and as ‘‘each allega-tion of infringement will be unique,’’ theextrinsic test is met, ‘‘[s]o long as theplaintiff can demonstrate, through experttestimony TTT, that the similarity was ‘sub-stantial’ and to ‘protected elements’ of thecopyrighted work.’’ Id. We have appliedthe substantial similarity standard to musi-cal infringement suits before, see id.;Three Boys Music, 212 F.3d at 485, andsee no reason to deviate from that stan-dard now. Therefore, the Gayes’ copyrightis not limited to only thin copyright protec-tion, and the Gayes need not prove virtualidentity to substantiate their infringementaction.

C. The Copyright Act of 1909Marvin Gaye composed ‘‘Got To Give It

Up’’ before January 1, 1978, the effectivedate of the Copyright Act of 1976. Accord-ingly, the Copyright Act of 1909 governsthe Gayes’ compositional copyright. SeeTwentieth Century Fox Film Corp. v.Entm’t Distrib., 429 F.3d 869, 876 (9th Cir.

2005); Dolman v. Agee, 157 F.3d 708, 712n.1 (9th Cir. 1998).

[21] While the Copyright Act of 1976protects ‘‘works of authorship’’ fixed in‘‘sound recordings,’’ 17 U.S.C. § 102, the1909 Act did not protect sound recordings.It is well settled that ‘‘[s]ound recordingsand musical compositions are separateworks with their own distinct copyrights.’’9

See VMG Salsoul, LLC v. Ciccone, 824F.3d 871, 877 (9th Cir. 2016) (quoting Er-ickson v. Blake, 839 F.Supp.2d 1132, 1135n.3 (D. Or. 2012) ). It remains unsettled,however, whether copyright protection formusical compositions under the 1909 Actextends only to the four corners of thesheet music deposited with the UnitedStates Copyright Office, or whether thecommercial sound recordings of the com-positions are admissible to shed light onthe scope of the underlying copyright.Here, the district court ruled that the 1909Act protected only the deposit copy of‘‘Got To Give It Up,’’ and excluded thesound recording from consideration.

The Gayes cross-appeal the districtcourt’s interpretation of the 1909 Act onlyin the event the case is remanded for anew trial. The parties have staked outmutually exclusive positions. The Gayesassert that Marvin Gaye’s studio recordingmay establish the scope of a compositionalcopyright, despite the 1909 Act’s lack ofprotection for sound recordings. TheThicke Parties, on the other hand, elevatethe deposit copy as the quintessentialmeasure of the scope of copyright protec-tion.10 Nevertheless, because we do not

9. 17 U.S.C. § 102(a)(2) protects ‘‘musicalworks,’’ while § 102(a)(7) protects ‘‘sound re-cordings.’’ ‘‘ ‘Sound recordings’ are worksthat result from the fixation of a series ofmusical, spoken, or other sounds TTT, regard-less of the nature of the material objects, suchas disks, tapes, or other phonorecords, inwhich they are embodied.’’ 17 U.S.C. § 101.

10. To our knowledge, the Thicke Parties’ posi-tion had not found support in case law untilthe district court’s ruling. See Three Boys Mu-sic, 212 F.3d at 486 (observing, in the contextof subject matter jurisdiction, that ‘‘[a]lthoughthe 1909 Copyright Act requires the owner todeposit a ‘complete copy’ of the work with thecopyright office, our definition of a ‘completecopy’ is broad and deferential’’); see also 17U.S.C. § 704 (providing that the Register of


remand the case for a new trial, we neednot, and decline to, resolve this issue inthis opinion. For purposes of this appeal,we accept, without deciding, the merits ofthe district court’s ruling that the scope ofthe Gayes’ copyright in ‘‘Got To Give ItUp’’ is limited to the deposit copy.

II. The District Court’s Order DenyingSummary Judgment is Not Review-able After a Full Trial on the Mer-its.

[22] The Thicke Parties seek review ofthe district court’s order denying their mo-tion for summary judgment, contendingthat the district court erred in its applica-tion of the extrinsic test for substantialsimilarity.

[23] The order is not reviewable. TheSupreme Court has squarely answered thequestion: ‘‘May a party TTT appeal an or-der denying summary judgment after afull trial on the merits? Our answer is no.’’Ortiz v. Jordan, 562 U.S. 180, 183–84, 131S.Ct. 884, 178 L.Ed.2d 703 (2011). An or-der denying summary judgment is ‘‘simplya step along the route to final judgment.’’Id. at 184, 131 S.Ct. 884. ‘‘Once the caseproceeds to trial, the full record developedin court supersedes the record existing atthe time of the summary-judgment mo-tion.’’ Id.

The Thicke Parties argue that we maynonetheless review the district court’s de-nial of summary judgment for legal error.We ‘‘generally do ‘not review a denial of a

summary judgment motion after a full trialon the merits.’ ’’ Escriba v. Foster PoultryFarms, Inc., 743 F.3d 1236, 1243 (9th Cir.2014) (quoting Banuelos v. Constr. Labor-ers’ Tr. Funds for S. Cal., 382 F.3d 897,902 (9th Cir. 2004) ). We carved out anexception to this general rule in the past,concluding that we may review ‘‘denials ofsummary judgment motions where the dis-trict court made an error of law that, if notmade, would have required the districtcourt to grant the motion.’’ Id. (quotingBanuelos, 382 F.3d at 902).

Ortiz calls into question the continuingviability of our exception.11 In Ortiz, theSupreme Court declined to address theargument that ‘‘ ‘purely legal’ issues capa-ble of resolution ‘with reference only toundisputed facts’ ’’ are preserved for ap-pellate review even after trial. 562 U.S. at189, 131 S.Ct. 884. Read broadly, Ortizdoes not foreclose review of denials ofsummary judgment after trial, so long asthe issues presented are purely legal. Butread narrowly, the Court’s dicta does notendorse such an exception either.

We need not decide today whether ourexception survives Ortiz unaltered. TheThicke Parties’ arguments ‘‘hardly present‘purely legal’ issues capable of resolution‘with reference only to undisputed facts.’ ’’Id. The district court’s application of theextrinsic test of similarity was a factboundinquiry far afield from decisions resolving‘‘disputes about the substance and clarityof pre-existing law.’’ Id. The district

Copyrights and the Librarian of Congress maydestroy or otherwise dispose of original de-posit copies if certain facsimile requirementsare met); Marya v. Warner/Chappell Music,Inc., 131 F.Supp.3d 975, 982 (C.D. Cal. 2015)(observing that ‘‘[t]he Copyright Office nolonger has the deposit copy’’ of the work atissue, which was registered in 1935); 2 Nim-mer on Copyright § 7.17[A] (2017) (notingthat ‘‘[t]he function of deposit is to providethe Library of Congress via the CopyrightOffice with copies and phonorecords of all

works published within the United States,’’and that the argument ‘‘that deposit has acopyright as well as an archival function’’ is‘‘attenuated by the fact that the Library ofCongress need not add all deposited works toits collection’’ or ‘‘preserve those workswhich it does add to its collection’’).

11. While Escriba, a 2014 decision, post-datesOrtiz, Escriba does not reference the SupremeCourt’s decision. See 743 F.3d at 1243.


court’s ruling bears little resemblance tolegal issues we have reviewed pursuant toour exception. See, e.g., Escriba, 743 F.3dat 1243–45 (examining whether ‘‘the dis-trict court erred as a matter of law byentertaining [defendant’s] ‘legally impossi-ble’ theory of the case that [plaintiff] affir-matively declined to take FMLA leave’’);Banuelos, 382 F.3d at 903 (examiningwhether ‘‘the district court erred as a mat-ter of law when it concluded it could hearevidence outside the administrative rec-ord’’ in an ERISA case); Pavon v. SwiftTransp. Co., 192 F.3d 902, 906 (9th Cir.1999) (reviewing the district court’s rulingon claim preclusion). We accordingly con-clude that Ortiz forecloses our review ofthe district court’s denial of summaryjudgment.

III. The District Court Did Not Abuseits Discretion in Denying a NewTrial.

[24–26] We review the district court’sdenial of a motion for a new trial for abuseof discretion. Lam v. City of San Jose, 869F.3d 1077, 1084 (9th Cir. 2017) (citing Mol-ski v. M.J. Cable, Inc., 481 F.3d 724, 728(9th Cir. 2007) ). We may reverse the deni-al of a new trial only if the district court‘‘reaches a result that is illogical, implausi-ble, or without support in the inferencesthat may be drawn from the record.’’ Id.(quoting Kode v. Carlson, 596 F.3d 608,612 (9th Cir. 2010) ). ‘‘The abuse of discre-tion standard requires us to uphold a dis-trict court’s determination that falls withina broad range of permissible conclusions,provided the district court did not applythe law erroneously.’’ Id. (quoting Kode,596 F.3d at 612).

The Thicke Parties argue that a newtrial is warranted on three grounds: (1)Jury Instructions 42 and 43 were errone-ous; (2) the district court abused its discre-tion in admitting portions of Finell and Dr.Monson’s testimony; and (3) the verdict isagainst the clear weight of the evidence.

We disagree, and discuss each ground inturn.

A. Instructions 42 and 43 Were NotErroneous.

[27, 28] We review de novo whetherjury instructions state the law accurately,but review a district court’s formulation ofjury instructions for abuse of discretion.Id. at 1085 (citing Hunter v. County ofSacramento, 652 F.3d 1225, 1232 (9th Cir.2011) ). ‘‘In evaluating jury instructions,prejudicial error results when, looking tothe instructions as a whole, the substanceof the applicable law was [not] fairly andcorrectly covered.’’ Dang v. Cross, 422F.3d 800, 805 (9th Cir. 2005) (alteration inoriginal) (quoting Swinton v. PotomacCorp., 270 F.3d 794, 802 (9th Cir. 2001) ).

1. Jury Instruction 42

[29] The Thicke Parties argue that In-struction 42 allowed the jury to place un-due weight on Williams and Thicke’s state-ments claiming inspiration from ‘‘Got ToGive It Up’’ and Marvin Gaye. The districtcourt instructed the jurors:

In order to find that the Thicke Partiescopied either or both of the Gaye Par-ties’ songs, it is not necessary that youfind that the Thicke Parties consciouslyor deliberately copied either or both ofthese songs. It is sufficient if you findthat the Thicke Parties subconsciouslycopied either or both of the Gaye Par-ties’ songs.

[30, 31] Because direct evidence israre, copying is usually circumstantiallyproved by a combination of access andsubstantial similarity. See Swirsky, 376F.3d at 844. As the Thicke Parties ac-knowledge, access may be ‘‘based on atheory of widespread dissemination andsubconscious copying.’’ Three Boys Music,212 F.3d at 483. In short, there is no


scienter requirement. See id. at 482–85.Instruction 42 stated as much.

[32] The Thicke Parties argue that In-struction 42 was nonetheless inappropri-ate, because the issue of access was not atissue. Not so. First, the fact that theThicke Parties conceded access to ‘‘Got ToGive It Up’’ does not diminish the impor-tance of access to the case. To the con-trary, access remains relevant. Our inverseratio rule provides that the stronger theshowing of access, the lesser the showingof substantial similarity is required. See id.at 485.

Second, and dispositive here, the in-structions as a whole make plain that acircumstantial case of copying requires notjust access, but also substantial similarity.Instructions 28 and 41 provide that copy-ing may be proven by demonstrating ac-cess plus substantial similarity.12 Instruc-tion 43 further underscores that the Gayes‘‘must show that there is both substantial‘extrinsic similarity’ and substantial ‘intrin-sic similarity’ as to that pair of works.’’Looking to the jury instructions as awhole, see Dang, 422 F.3d at 805, it is clearthat the district court properly instructedthe jury to find both access and substantialsimilarity.

In light of the foregoing, we concludethat the district court did not err in givingJury Instruction 42.

2. Jury Instruction 43

[33] The Thicke Parties argue that In-struction 43 erroneously instructed thejury to consider unprotectable elements.Specifically, they contend that the districtcourt instructed the jury that it ‘‘mustconsider’’ elements that they contend arenot present in the deposit copy: ‘‘ThemeX,’’ the descending bass line, and keyboardparts. Instruction 43 states, in pertinentpart:

Extrinsic similarity is shown when twoworks have a similarity of ideas andexpression as measured by external, ob-jective criteria. To make this determina-tion, you must consider the elements ofeach of the works and decide if they aresubstantially similar. This is not thesame as ‘‘identical.’’ There has been tes-timony and evidence presented by bothsides on this issue, including by expertwitnesses, as to such matters as: (a) for‘‘Got to Give It Up’’ and ‘‘BlurredLines,’’ the so-called ‘‘SignaturePhrase,’’ hook, ‘‘Theme X,’’ bass melo-dies, keyboard parts, word painting, lyr-ics, [and] rap v. parlando TTTT The GayeParties do not have to show that each ofthese individual elements is substantiallysimilar, but rather that there is enoughsimilarity between a work of the GayeParties and an allegedly infringing workof the Thicke Parties to comprise a sub-stantial amount.

12. Instruction 28 provides: ‘‘The Gaye Partiesmay show the Thicke Parties copied from thework by showing by a preponderance of theevidence that the Thicke Parties had access tothe Gaye Parties’ copyrighted work and thatthere are substantial similarities between theThicke Parties’ work and original elements ofthe Gaye Parties’ work.’’ That the instructionuses the permissive ‘‘may’’ presents no prob-lem. It simply reflects the fact that the Gayesmay, but are not required to, prove copyingby way of a circumstantial theory, rather thana direct one.

Instruction 41 provides: ‘‘If you concludethat the Thicke Parties had access to either orboth of the Gaye Parties’ works before creat-ing either or both of their works, you mayconsider that access in connection with deter-mining whether there is substantial similaritybetween either or both pairs of works.’’ In-struction 41’s use of ‘‘may’’ is not problematiceither. In line with our inverse ratio rule, theinstruction permits the jury to consider access‘‘in connection with’’ substantial similarity.


First, the Thicke Parties take the word‘‘must’’ out of context. Instruction 43’s useof the word ‘‘must’’ serves to underline theextrinsic test’s requirement that the jurycompare the objective elements of theworks for substantial similarity.

Second, Finell testified that ‘‘Theme X,’’the descending bass line, and the keyboardparts are reflected in the deposit copy,while Wilbur testified to the contrary. Theexperts’ quarrel over what was in the de-posit copy was a factual dispute for thejury to decide. Even if Instruction 43’sinclusion of contested elements could haveled the jury to believe that the elementswere in the deposit copy, and to considerthem as protectable elements for purposesof the substantial similarity analysis, wecannot view Instruction 43 in isolation. Inlight of the jury instructions as a whole,we do not conclude that the district court’slisting of elements in Instruction 43 pre-vented the jury from making a factualdetermination of what was in the depositcopy.

The instructions on whole make clearthat the jury could consider only elementsin the deposit copy. Instruction 28 statesthat the Gayes bear ‘‘the burden of prov-ing that the Thicke Parties copied originalelements from the Gaye[s’] copyrightedwork.’’ Instruction 35, in turn, defines theGayes’ copyrighted work. Instruction 35informed jurors that at the time the copy-right in ‘‘Got To Give It Up’’ was regis-tered, ‘‘only written music could be filed bya copyright owner with the Copyright Of-fice as the deposit copy of the copyrightedwork.’’ In contrast, ‘‘[r]ecordings of musi-cal compositions could not be filed with theCopyright Office at that time.’’ The districtcourt cautioned the jurors to distinguishbetween the commercial sound recordingof ‘‘Got To Give It Up’’ and the depositcopy, noting that ‘‘although [a] sound re-cording[ ] of ‘Got to Give It Up’ TTT w[as]made and released commercially, th[e]

particular recording[ ] [is] not at issue inthis case, w[as] not produced into evidence,and w[as] not played for you during thetrial.’’ What was at issue was ‘‘testimonyfrom one or more witnesses from each sideabout what each thinks is shown on thedeposit copy for each composition,’’ as wellas ‘‘recorded versions of each work thateach side has prepared based on what eachside contends is shown in the deposit copythat was filed with the Copyright Office.’’In short, the district court instructed thejurors that the deposit copy, not the com-mercial sound recording, was the copy-righted work in the case.

Harper House, Inc. v. Thomas Nelson,Inc., 889 F.2d 197 (9th Cir. 1989), is nothelpful to the Thicke Parties. In HarperHouse, we held that the district courterred in failing to give jury instructionsthat ‘‘adequately distinguish[ed] betweenprotectable and unprotectable material.’’889 F.2d at 207–08. The copyrighted worksat issue in Harper House were organizers,which receive ‘‘extremely limited protec-tion’’ and are ‘‘compilations consistinglargely of uncopyrightable elements,’’ suchas ‘‘blank forms, common property, or uti-litarian aspects.’’ Id. at 205, 207–08.

Suffice to say, musical compositions arenot like organizers, and this case is easilydistinguishable. The jury never heard thecommercial sound recording. Elements in-disputably present only in the sound re-cording, such as the use of cowbell andparty noises, were never played at trial.Had that been the case, the district courtwould have had to instruct the jury todistinguish between elements in the com-mercial recording and elements in the de-posit copy. Instead, the jury heard soundclips edited to capture elements that theexperts testified were in the deposit copy.The question of which expert to believewas properly confided to the jury.


The district court did not err in givingInstruction 43.

B. The District Court Did Not Abuseits Discretion in Admitting Por-tions of Finell and Dr. Monson’sTestimony.

[34] We review the district court’s evi-dentiary rulings for abuse of discretion.Wagner v. County of Maricopa, 747 F.3d1048, 1052 (9th Cir. 2013). The ThickeParties contend that the district courtabused its discretion in admitting portionsof Finell and Dr. Monson’s expert testimo-ny, arguing that they based their testimo-ny on unprotectable elements. We dis-agree.

1. Finell’s Testimony[35] The Thicke Parties object only to

three portions of Finell’s testimony: hertestimony regarding ‘‘Theme X,’’ the de-scending bass line, and the keyboard parts.Finell testified that ‘‘Theme X,’’ the de-scending bass line, and the keyboardrhythms were in the deposit copy.

Finell was cross-examined for fourhours. During cross-examination, Finellconceded that the notes of ‘‘Theme X’’were not written on the sheet music, andshe was questioned about her testimonythat the notes of ‘‘Theme X’’ were impliedin the deposit copy. She also acknowledgedthat the bass melody she presented at trial

differed from that notated in the depositcopy. She was impeached with her deposi-tion testimony, in which she admitted thatthe rhythm of the keyboard parts in thesound recording of ‘‘Got To Give It Up’’ isnot notated in the deposit copy.

Wilbur disputed her testimony, opiningthat ‘‘Theme X,’’ the descending bass line,and the keyboard rhythms are not con-tained in the deposit copy. The disputeboiled down to a question of whose testi-mony to believe. Both experts referencedthe sound recording.13 Both experts agreedthat sheet music requires interpretation.14

The question of whose interpretation ofthe deposit copy to credit was a questionproperly left for the jury to resolve. SeeThree Boys Music, 212 F.3d at 485–86(‘‘We refuse to interfere with the jury’scredibility determination[.]’’). Therefore,the district court did not abuse its discre-tion by permitting Finell’s testimony.

2. Dr. Monson’s Testimony

[36] The Thicke Parties argue that thedistrict court abused its discretion in al-lowing Dr. Monson to play audio ‘‘mash-ups’’ superimposing Marvin Gaye’s vocalsfrom ‘‘Got To Give It Up’’ onto the accom-paniment in ‘‘Blurred Lines,’’ and vice ver-sa. They argue that the ‘‘mash-ups’’ con-tained unprotectable elements, such as thekeyboard parts, bass melodies, and MarvinGaye’s vocals.15

13. Wilbur initially relied upon the commer-cial sound recording of ‘‘Got To Give It Up’’to prepare her transcriptions. She continuedto rely upon her transcriptions from the com-mercial sound recording, finding that theywere substantially the same as the transcrip-tions prepared from the deposit copy.

14. On cross-examination, Wilbur acknowl-edged that a lead sheet reflects a simplifiedversion of a chord pattern in a composition,and that chord notation is merely representa-tional.

Wilbur also acknowledged that she reliedon her interpretation of what was contained

within the lead sheet to create her recordingof ‘‘Got To Give It Up.’’ She admitted that shemade choices to deviate from the sheet music,and that her choices were informed by hermusical training and knowledge. For exam-ple, despite the sheet music’s instruction tocontinue playing a bass line throughout thesong, she chose not to do so in certain partsof the song, knowing that playing the bassline would clash with certain chords.

15. Although the ‘‘mash-ups’’ used MarvinGaye’s vocals, the parties have not disputedwhether Marvin Gaye’s vocals were notatedin the deposit copy.


This argument faces the same hurdle asthe Thicke Parties’ objection to Finell’stestimony. Dr. Monson testified that therewere structural similarities between thetwo songs at a sectional level and at aphrasing level, and used the ‘‘mash-ups’’ todemonstrate the songs’ shared harmonicand melodic compatibility. We have per-mitted similar expert testimony in thepast. Cf. Swirsky, 376 F.3d at 845–47(holding that district court erred in dis-counting expert’s testimony regardingstructural similarities between two chorus-es). Dr. Monson was cross-examined onher opinion, and the jury was free to weighher testimony as it saw fit.

Our decision in Three Boys Music con-firms that the district court acted withinits discretion. Three Boys Music was a1909 Act copyright infringement case inwhich the jury heard not only a renditionof the deposit copy, see 212 F.3d at 486,but the complete commercial sound re-cording of the copyrighted song. Althoughthe sufficiency of the deposit copy arose inthe context of subject matter jurisdictionin Three Boys Music, our treatment of theissue lends support for our present conclu-sion. In Three Boys Music, the defendantsargued that there were ‘‘inaccuracies inthe deposit copy.’’ 212 F.3d at 486–87.While the plaintiffs’ expert testified that‘‘the song’s essential elements’’ were in thedeposit copy, the defendants argued that‘‘the majority of the musical elements thatwere part of the infringement claim’’ werenot in the deposit copy. Id. at 486. Despitethe fact that the jury heard the completesound recording, which differed from the

deposit copy, we still upheld the jury’sverdict finding for the plaintiffs.16 Id. at486–87.

Here, the district court excluded thecommercial sound recording of ‘‘Got ToGive It Up’’ from trial, and vigilantly po-liced the admission of testimony through-out trial, repeatedly instructing counsel toensure that the experts tethered their tes-timony to the sheet music. The districtcourt did not abuse its discretion in admit-ting portions of the Gayes’ experts’ testi-mony.

C. The Verdict Was Not Against theClear Weight of the Evidence.

[37] The Thicke Parties argue that theverdict is against the clear weight of theevidence, maintaining that there is no ex-trinsic or intrinsic similarity between thetwo songs.

[38, 39] We are bound by the ‘‘ ‘limitednature of our appellate function’ in review-ing the district court’s denial of a motionfor a new trial.’’ Lam, 869 F.3d at 1084(quoting Kode, 596 F.3d at 612). So long as‘‘there was some ‘reasonable basis’ for thejury’s verdict,’’ we will not reverse thedistrict court’s denial of a motion for a newtrial. Id. (quoting Molski, 481 F.3d at 729).‘‘[W]here the basis of a Rule 59 ruling isthat the verdict is not against the weightof the evidence, the district court’s denialof a Rule 59 motion is virtually unassaila-ble.’’ Id. (quoting Kode, 596 F.3d at 612).When that is the case, we reverse ‘‘onlywhen there is an absolute absence of evi-dence to support the jury’s verdict.’’ Id.

16. It appears that factfinders have listened tocommercial sound recordings in other musiccopyright infringement cases governed by the1909 Act. See, e.g., Repp v. Webber, 892F.Supp. 552, 558 (S.D.N.Y. 1995) (‘‘Havinglistened to the two songs at issue, however,the Court cannot say as a matter of law thatthey do not share any substantial similari-ties.’’); Bright Tunes Music Corp. v. Harrisongs

Music, Ltd., 420 F.Supp. 177, 180 (S.D.N.Y.1976) (noting that the similarity between thesongs ‘‘is perfectly obvious to the listener’’),aff’d sub nom. ABKCO Music, Inc. v. Harri-songs Music, Ltd., 722 F.2d 988 (2d Cir.1983); N. Music Corp. v. King Record Distrib.Co., 105 F.Supp. 393, 398 (S.D.N.Y. 1952)(‘‘We have suffered through the playing of thecommercial recordings.’’).


(quoting Kode, 596 F.3d at 612). ‘‘It is notthe courts’ place to substitute our evalua-tions for those of the jurors.’’ Union OilCo. of Cal. v. Terrible Herbst, Inc., 331F.3d 735, 743 (9th Cir. 2003). Of note, weare ‘‘reluctant to reverse jury verdicts inmusic cases’’ on appeal, ‘‘[g]iven the diffi-culty of proving access and substantialsimilarity.’’17 Three Boys Music, 212 F.3dat 481.

The Thicke Parties face significant, ifnot unsurmountable, hurdles. First, we aregenerally reluctant to disturb the trier offact’s findings, and have made clear that‘‘[w]e will not second-guess the jury’s ap-plication of the intrinsic test.’’ Id. at 485.Second, our review is necessarily deferen-tial where, as here, the district court, indenying the Rule 59 motion, concludedthat the verdict was not against the clearweight of the evidence. Finell testified thatnearly every bar of ‘‘Blurred Lines’’ con-tains an area of similarity to ‘‘Got To GiveIt Up.’’ Even setting aside the three ele-ments that trouble the Thicke Parties(‘‘Theme X,’’ the bass line, and the key-board parts), Finell and Dr. Monson testi-fied to multiple other areas of extrinsicsimilarity, including the songs’ signaturephrases, hooks, bass melodies, word paint-ing, the placement of the rap and ‘‘parlan-do’’ sections, and structural similarities ona sectional and phrasing level. Thus, wecannot say that there was an absolute ab-sence of evidence supporting the jury’sverdict.

We conclude that the district court didnot abuse its discretion in denying theThicke Parties’ motion for a new trial.

IV. The Awards of Actual Damagesand Profits and the DistrictCourt’s Running Royalty WereProper.

A. The Award of Damages Was NotBased on Undue Speculation.

[40–42] We afford ‘‘great deference’’ toa jury’s award of damages and will upholdthe award ‘‘unless it is ‘clearly not sup-ported by the evidence’ or ‘only based onspeculation or guesswork.’ ’’ In re FirstAll. Mortg. Co., 471 F.3d 977, 1001 (9thCir. 2006) (quoting L.A. Mem’l ColiseumComm’n v. Nat’l Football League, 791F.2d 1356, 1360 (9th Cir. 1986) ). We willuphold an award of hypothetical-licensedamages ‘‘provided the amount is notbased on ‘undue speculation.’ ’’ OracleCorp. v. SAP AG, 765 F.3d 1081, 1088 (9thCir. 2014) (quoting Polar Bear Prods., Inc.v. Timex Corp., 384 F.3d 700, 709 (9th Cir.2004) ). ‘‘The touchstone for hypothetical-license damages is ‘the range of [the li-cense’s] reasonable market value.’ ’’ Id. (al-teration in original) (quoting Polar BearProds., Inc., 384 F.3d at 709) ).

[43] Here, the jury awarded the Gayesactual damages in the amount of 50% ofthe publishing revenues for ‘‘BlurredLines.’’ The Thicke Parties ask us to va-cate the award of $3,188,527.50 (remittedby the district court from the jury’s origi-nal award of $4 million),18 because it wasbased upon an unduly speculative hypo-thetical license rate of 50%. We disagree.

The Gayes called Nancie Stern, an in-dustry expert with over twenty years of

17. Our conclusion in Three Boys Music pro-vides an example of the deference we mustapply in reviewing the jury’s verdict. Althoughthat case presented ‘‘a weak case of accessand a circumstantial case of substantial simi-larity,’’ we held that ‘‘neither issue warrantsreversal of the jury’s verdict.’’ 212 F.3d at486.

18. The district court concluded that it haderred in informing the jury that the publishingrevenues amounted to $8 million, where theparties had stipulated that the publishing rev-enues totaled $6,377,055. Having determinedthat the jury applied a royalty rate of 50% tothe publishing revenues, the district court re-mitted the damages award from $4 million to$3,188,527.50, which is 50% of $6,377,055.


experience in negotiating and assigningvaluations for the use of portions of oldermusical compositions in new compositions.Stern has performed such valuations thou-sands of times. Major labels, as well asrenowned artists, have retained her ser-vices. Few other people or businesses per-form her line of work.

Stern testified that the prototypical ne-gotiation centers on the percentage of thenew musical composition that the owner ofthe older composition should receive forthe use. The industry standard assigns50% for the music and 50% for the lyrics.Turning to the two songs at hand, Sternopined that the value of the use of ‘‘Got ToGive It Up’’ in ‘‘Blurred Lines’’ would havebeen 50% had the Thicke Parties sought alicense pre-release. Had the Thicke Partiessought a license post-release, the valuationwould range between 75% to 100% per-cent. Stern arrived at her conclusion byreviewing ‘‘snippets’’ of the two songs and‘‘A-B’ing’’ them, or playing them back andforth.19 Stern’s methodology and opinionwere not unduly speculative, but tetheredto her deep industry expertise.

In an attempt to buttress their position,the Thicke Parties cite to two decisionswhich are distinguishable. In Oracle, weheld the jury’s award of $1.3 billion inhypothetical-license damages to be undulyspeculative because ‘‘the evidence present-ed at trial failed to provide ‘the range ofthe reasonable market value’ ’’ underlyingthe actual damages award. 765 F.3d at1089 (quoting Polar Bear Prods., Inc., 384F.3d at 709) ). Oracle’s evidence wasbased on projected benefits and costs, andOracle lacked a history of granting com-parable licenses and provided no evidenceof ‘‘benchmark’’ licenses in the industry.See id. at 1091–93. ‘‘Although a copyrightplaintiff need not demonstrate that it

would have reached a licensing agreementwith the infringer or present evidence of‘benchmark’ agreements in order to re-cover hypothetical-license damages,’’ weobserved that ‘‘it may be difficult for aplaintiff to establish the amount of suchdamages without undue speculation in theabsence of such evidence.’’ Id. at 1093.

Here, as in Oracle, there is no evidenceof a prior benchmark license agreementbetween the Thicke Parties and the Gayes.However, in contrast to Oracle, the Gayestethered their hypothetical license dam-ages to evidence of a benchmark license inthe industry. Instead of relying on unduespeculation, the Gayes presented an expertwho had extensive and specialized knowl-edge regarding the type of hypotheticallicense at issue. Stern opined, based on anindustry standard and her evaluation ofthe songs involved, that the reasonablemarket value of a license would rangebetween 50% pre-release and 75% to 100%post-release.

In Uniloc USA, Inc. v. Microsoft Corp.,632 F.3d 1292 (Fed. Cir. 2011), the FederalCircuit held that the ‘‘25 percent rule ofthumb,’’ used in patent cases ‘‘to approxi-mate the reasonable royalty rate that themanufacturer of a patented product wouldbe willing to offer to pay to the patenteeduring a hypothetical negotiation,’’ is a‘‘fundamentally flawed tool.’’ 632 F.3d at1312, 1315. The Federal Circuit observedthat the 25% rule is ‘‘an abstract andlargely theoretical construct’’ that ‘‘doesnot say anything about a particular hypo-thetical negotiation or reasonable royaltyinvolving any particular technology, indus-try, or party.’’ Id. at 1317. The 50% stan-dard Stern identified does not extend with-out bounds across art forms or differentcopyrightable media in the same way the

19. Although the Thicke Parties contend thatStern impermissibly based her testimony onthe sound recording of ‘‘Got To Give It Up,’’

Stern testified that her opinion was basedsolely on the edited clips approved for trial.


25% rule of thumb applied without regardto the industry or technology involved.Stern’s opinion was not based on abstrac-tion, but on an industry standard and herexpert assessment of the two songs. Hertestimony was not unduly speculative, anddid not render the damages award improp-er.

B. The Award of Profits Is NotClearly Erroneous.

[44, 45] We review an apportionmentof infringer’s profits for clear error. CreamRecords, Inc. v. Joseph Schlitz BrewingCo., 864 F.2d 668, 669 (9th Cir. 1989) (percuriam); see also Three Boys Music, 212F.3d at 487 (upholding jury’s apportion-ment of profits for lack of clear error). Theburden is on the defendant to prove whatpercentage of its profits is not attributableto infringement. Three Boys Music, 212F.3d at 487.

[46] The Thicke Parties contend thatthe award of $1,768,191.88 in profitsagainst Thicke and $357,630.96 (remittedby the district court from the jury’s origi-nal award of $1,610,455.31) againstWilliams, which amounted to approximate-ly 40% of their non-publishing profits from‘‘Blurred Lines,’’ is excessive. They assertthat the evidence supports a profits awardof only 5%, citing Wilbur’s opinion thatless than 5% of ‘‘Blurred Lines’’ containselements allegedly similar to ones in ‘‘GotTo Give It Up.’’

We affirmed a similar profits award inThree Boys Music. See id. In Three BoysMusic, the defendant presented evidencethat only 10% to 15% of profits were at-tributable to the song’s infringing ele-ments. Id. Despite the evidence, the juryattributed 66% of profits to the song’sinfringing elements. Id. Here, the ThickeParties bore the burden of proof. The jurywas free to accept Wilbur’s testimony orinstead credit Finell’s testimony that near-ly every measure of ‘‘Blurred Lines’’ con-

tains an element similar to ‘‘Got To Give ItUp.’’ The jury’s choice to ‘‘apportion[ ] lessthan 100% of the profits but more than thepercentage estimates of [the Thicke Par-ties’] expert[ ] does not represent clearerror.’’ Id.

C. The District Court Did Not Abuseits Discretion in Awarding theGayes a Running Royalty at theRate of 50%.

[47, 48] We review a district court’s de-cision to award equitable relief for abuse ofdiscretion. Traxler v. Multnomah County,596 F.3d 1007, 1014 n.4 (9th Cir. 2010); seealso Presidio Components, Inc. v. Am.Tech. Ceramics Corp., 702 F.3d 1351, 1363(Fed. Cir. 2012) (reviewing district court’simposition of an ongoing royalty for abuseof discretion). Findings of fact are re-viewed for clear error. See Traxler, 596F.3d at 1014 n.4.

[49] The district court based the royal-ty rate on Stern’s testimony. For the samereasons set forth above, see supra PartVI.A, we conclude that the district courtdid not abuse its discretion in awardingthe Gayes a running royalty at the rate of50%.

V. The District Court Erred in Over-turning the Jury’s General Verdictin Favor of Harris and the Inter-scope Parties.

[50, 51] We review de novo a districtcourt’s grant of judgment as a matter oflaw. Wallace v. City of San Diego, 479F.3d 616, 624 (9th Cir. 2007). We alsoreview de novo a trial judge’s decision todisrupt a jury verdict on the basis that anerroneous instruction resulted in inconsis-tent verdicts. Westinghouse Elec. Corp. v.Gen. Circuit Breaker & Elec. Supply Inc.,106 F.3d 894, 901 (9th Cir. 1997).


[52] Harris and the Interscope Partiescontend that the district court erred inoverturning the jury’s general verdictsfinding in their favor. We agree. First, theGayes waived any challenge to the consis-tency of the jury’s general verdicts. Sec-ond, even had the Gayes preserved theirchallenge, neither Federal Rule of CivilProcedure 50(b) nor our decisions in West-inghouse, 106 F.3d 894, and El–Hakem v.BJY Inc., 415 F.3d 1068 (9th Cir. 2005),conferred authority on the district court toupset the jury’s verdicts in this case.Third, as to Harris specifically, the districtcourt erred for the additional reason thatno evidence showed Harris was vicariouslyliable.

A. The Gayes Waived Any Challengeto the Consistency of the Jury’sGeneral Verdicts.

[53] A party ‘‘waive[s] its objection tothe jury’s verdict TTT by not objecting tothe alleged inconsistency prior to the dis-missal of the jury.’’ Home Indem. Co. v.Lane Powell Moss & Miller, 43 F.3d 1322,1331 (9th Cir. 1995); see also Kode, 596F.3d at 611 (recognizing waiver where ‘‘themoving party argues that the jury hasrendered a verdict that contains two legalconclusions that are inconsistent with oneanother, and the moving party does notobject before jury discharge’’); PhilippineNat’l Oil Co. v. Garrett Corp., 724 F.2d803, 806 (9th Cir. 1984) (holding that aparty ‘‘waived its right to object to theverdict by failing to object when the ver-dict was read’’). The Gayes did not objectto the jury’s verdicts prior to jury dis-

charge. Nor did they object during a collo-quy with the district court after the jurywas discharged. They thus waived theirchallenge to any perceived inconsistenciesbetween the jury’s general verdicts.20

B. The Gayes’ Failure to Make aMotion Under Federal Rule ofCivil Procedure 50(a) PrecludedRelief Under Rule 50(b).

[54, 55] ‘‘Under Rule 50, a party mustmake a Rule 50(a) motion for judgment asa matter of law before a case is submittedto the jury.’’ E.E.O.C. v. Go Daddy Soft-ware, Inc., 581 F.3d 951, 961 (9th Cir.2009). The Gayes did not make a Rule50(a) motion. Because ‘‘failure to file aRule 50(a) motion precludes considerationof a Rule 50(b) motion for judgment as amatter of law,’’ Tortu v. Las Vegas Metro.Police Dep’t, 556 F.3d 1075, 1083 (9th Cir.2009), Rule 50(b) did not authorize thedistrict court to overturn the jury’s gener-al verdicts and adjudge Harris and theInterscope Parties liable as a matter oflaw.21

C. Westinghouse and El–Hakem DoNot Apply.

The district court relied on two of ourdecisions to overturn the jury’s generalverdicts: Westinghouse, 106 F.3d 894, andEl–Hakem, 415 F.3d 1068. Neither deci-sion applies in this case.

In Westinghouse, we affirmed a districtcourt’s decision to reconcile inconsistentgeneral verdicts resulting from an errone-ous jury instruction. See 106 F.3d at 902.There, the culprit was an erroneous in-

20. The Gayes have not addressed the issue ofwaiver on appeal.

21. There is one safety valve for what is other-wise a ‘‘harsh’’ rule: ‘‘Rule 50(b) ‘may besatisfied by an ambiguous or inartfully mademotion’ under Rule 50(a).’’ Go Daddy Soft-ware, Inc., 581 F.3d at 961 (quoting Reeves v.Teuscher, 881 F.2d 1495, 1498 (9th Cir.

1989) ). The Gayes briefly argue that a collo-quy between their counsel and the districtcourt regarding jury instructions and verdictforms qualifies as an ‘‘ambiguous or inartfullymade’’ Rule 50(a) motion. The colloquy fallsfar short of the standard for a Rule 50(a)exception based on an ‘‘ambiguous or inart-fully made’’ motion.


struction which added an extra element toan affirmative defense. Id. at 898. We heldthat where ‘‘it is possible to examine thepattern of jury verdicts and logically de-termine what facts a rational juror musthave found in order to reach those ver-dicts,’’ and the error is traceable to anerroneous jury instruction, the districtcourt may ‘‘apply the correct law to theseimplicit factual findings and thereby TTTremedy the harm from the erroneous juryinstruction without the expense and delayof a new trial.’’ Id. at 902.

[56] However, Westinghouse involveda ‘‘seemingly rare situation.’’ Id. The West-inghouse exception to letting inconsistentgeneral verdicts stand applies sparingly.‘‘[I]n most cases where a jury rendersinconsistent verdicts, the trial judge mustallow those verdicts to stand because ‘it isunclear whose ox has been gored.’ ’’ Id. at903 (quoting United States v. Powell, 469U.S. 57, 65, 105 S.Ct. 471, 83 L.Ed.2d 461(1984) ). District courts may ‘‘reconcile theverdicts without intruding upon the jury’sfact-finding role’’ only under ‘‘very limitedcircumstances,’’ where ‘‘there is an identifi-able error that only could have affectedone of the verdicts,’’ ‘‘where the necessaryfactual findings can be determined fromthe pattern of verdicts,’’ and where thereis ‘‘nothing to [be] gain[ed] from a newtrial.’’ Id. at 902.

Those rare circumstances are not pres-ent in this case. The district court conclud-ed that its instructions on distribution lia-bility were inadequate, and that withclearer instructions, the jury would neces-sarily have found the Interscope Parties

and Harris liable for distributing the in-fringing work. However, the instructionsdid not contain any error on par with theunmistakably erroneous instruction inWestinghouse.

Next, El–Hakem does not authorize thereconciliation of inconsistent general ver-dicts. It is clear that our holding in El–Hakem stemmed from law specific to spe-cial verdicts.22 Indeed, we observed that‘‘[w]hen confronted by seemingly inconsis-tent responses to special verdict interroga-tories, a trial court has a duty to harmon-ize those responses whenever possible.’’El–Hakem, 415 F.3d at 1074 (emphasisadded). In contrast, there is no duty toreconcile inconsistent general verdicts. Wehave held, in accordance with the majorityrule, that ‘‘legally inconsistent verdicts‘may nonetheless stand on appeal eventhough inconsistent.’ ’’ Zhang v. Am. GemSeafoods, Inc., 339 F.3d 1020, 1035 (9thCir. 2003) (quoting Int’l Longshoremen’s &Warehousemen’s Union (CIO) v. Hawai-ian Pineapple Co., 226 F.2d 875, 881 (9thCir. 1955) ). We see no reason to deviatefrom this rule today.

D. Harris Is Not Vicariously Liable.[57] The district court erred in enter-

ing judgment against Harris for the addi-tional reason that the Gayes proffered noevidence establishing that Harris was sec-ondarily liable for vicarious infringement.The Gayes argue, without citing to therecord or to any law, that Harris is liableas a matter of law as a co-owner of thecopyright who authorized the distributionof ‘‘Blurred Lines.’’23 They are incorrectboth legally and factually.

22. It is true, as the Gayes observe, that whilewe classified the verdicts in El–Hakem asspecial verdicts, they were functionally gener-al verdicts. See El–Hakem v. BJY Inc., 262F.Supp.2d 1139, 1146 (D. Or. 2003), aff’d,415 F.3d 1068 (9th Cir. 2005). Notwithstand-ing this fact, El–Hakem is distinguishable forthe reasons above, and for the additional rea-

son that the parties in El–Hakem, unlike theparties in this case, moved for judgment as amatter of law. 415 F.3d at 1072.

23. The parties’ stipulation that Harris co-owned 13% of the musical composition copy-right in ‘‘Blurred Lines’’ sheds no light onHarris’s role in the distribution process.


[58, 59] To be vicariously liable forcopyright infringement, one must have ‘‘(1)the right and ability to supervise the in-fringing conduct and (2) a direct financialinterest in the infringing activity.’’ Perfect10, Inc. v. Visa Int’l Serv., Ass’n, 494 F.3d788, 802 (9th Cir. 2007). A vicarious in-fringer ‘‘exercises control over a directinfringer when he has both a legal right tostop or limit the directly infringing con-duct, as well as the practical ability to doso.’’ Perfect 10, Inc. v. Amazon.com, Inc.,508 F.3d 1146, 1173 (9th Cir. 2007).

No evidence was adduced at trial sup-porting a theory of vicarious liability. Har-ris, who did not testify at trial, indepen-dently wrote and recorded a rap verse thatwas added to the track seven months afterThicke and Williams created ‘‘BlurredLines.’’ Neither Thicke nor Williams ex-pected the later addition of a rap verse orhad anything to do with its creation. TheGayes have cited nothing in the recorddemonstrating that Harris had either aright to stop the infringing conduct or theability to do so, much less both.

We conclude that the district court erredin upsetting the jury’s general verdicts infavor of Harris and the Interscope Partiesand entering judgment against them.

VI. The District Court Did Not Abuseits Discretion in Denying theGayes’ Motion for Attorney’s Fees.

[60] We review a district court’s deci-sion on attorney’s fees for abuse of discre-tion. Stetson v. Grissom, 821 F.3d 1157,1163 (9th Cir. 2016).

[61] The Gayes request that we vacatethe district court’s order denying their mo-tion for attorney’s fees and remand thecase for reconsideration in light of Kirt-saeng v. John Wiley & Sons, Inc., ––– U.S.––––, 136 S.Ct. 1979, 195 L.Ed.2d 368(2016). In Kirtsaeng, the Supreme Courtreaffirmed the principle that, in exercisingits authority under § 505 of the Copyright

Act to award a prevailing party attorney’sfees, a court ‘‘should give substantialweight to the objective reasonableness ofthe losing party’s position.’’ Id. at 1983.The Court cautioned, however, that ‘‘thecourt must also give due consideration toall other circumstances relevant to grant-ing fees; and it retains discretion, in lightof those factors, to make an award evenwhen the losing party advanced a reason-able claim or defense.’’ Id.

Here, the district court’s examination ofobjective reasonableness was but one fac-tor in its analysis. The district court tookthe specific circumstances of the case intoconsideration, including the degree of suc-cess obtained, the purposes of the Copy-right Act, the chilling effect of attorney’sfees, motivation, frivolousness, factual andlegal unreasonableness, compensation, anddeterrence. The district court did notabuse its discretion in denying the Gayes’motion for attorney’s fees, and a remandon that issue is not warranted.

VII. The District Court Did Not Abuseits Discretion in ApportioningCosts Among the Parties.

[62] We review the district court’saward of costs for abuse of discretion.Draper v. Rosario, 836 F.3d 1072, 1087(9th Cir. 2016).

[63, 64] Federal Rule of Civil Proce-dure 54(d)(1) authorizes the award of costs‘‘to the prevailing party.’’ A ‘‘party inwhose favor judgment is rendered is gen-erally the prevailing party for purposes ofawarding costs under Rule 54(d).’’ San Di-ego Police Officers’ Ass’n v. San DiegoCity Emps.’ Ret. Sys., 568 F.3d 725, 741(9th Cir. 2009) (quoting d’Hedouville v.Pioneer Hotel Co., 552 F.2d 886, 896 (9thCir. 1977) ). Here, the district court en-tered judgment for the Gayes on theirclaim that ‘‘Blurred Lines’’ infringed theircopyright in ‘‘Got To Give It Up,’’ but


entered judgment for the Thicke Partieson the Gayes’ claim that ‘‘Love After War’’infringed their copyright in ‘‘After theDance.’’ The district court apportioned theaward of costs accordingly, awarding theGayes their costs for the ‘‘Blurred Lines’’claim, and awarding the Thicke Partiestheir costs for the ‘‘Love After War’’ claim.

The Gayes urge us to adopt the FederalCircuit’s holding that ‘‘there can only beone prevailing party in a given case’’ forpurposes of Rule 54(d)(1). Shum v. IntelCorp., 629 F.3d 1360, 1367 (Fed. Cir. 2010).Despite the Federal Circuit’s singular con-struction of ‘‘the prevailing party,’’ it af-firmed an award of costs functionallyequivalent to the one the district courtordered in this case. See id. at 1364. TheFederal Circuit held that ‘‘the districtcourt did not abuse its discretion in award-ing costs to each party with respect to theclaims on which they each prevailed, thennetting those sums to arrive at the finalfigure.’’ Id. Here, as in Shum, the districtcourt in effect reduced the Gayes’ costsaward ‘‘to reflect the extent of [their] vic-tory.’’ Id. at 1370. This was not an abuse ofdiscretion.24

VIII. You Can’t Get There from Here:The Dissent Ignores GoverningLaw that We Must Apply Giventhe Procedural Posture of theCase.

The dissent’s position violates every con-trolling procedural rule involved in thiscase. The dissent improperly tries, after afull jury trial has concluded, to act asjudge, jury, and executioner, but there isno there there, and the attempt fails.

Two barriers block entry of judgment asa matter of law for the Thicke Parties. Thedissent attempts to sidestep these obsta-cles: It finds that the Thicke Parties areentitled to judgment as a matter of law,but fails to explain the procedural mecha-nism by which this could be achieved. Giv-en this flawed premise, it is perhaps un-surprising how little the dissent mirrorsthe majority opinion, and how far it veersinto analysis untethered from the proce-dural posture of this case.

First, the dissent incorrectly concludesthat there are no procedural obstaclesbarring entry of judgment as a matter oflaw for the Thicke Parties. The dissent isunable to distinguish the Supreme Court’sdecision in Ortiz, which prevents us fromreviewing the district court’s order deny-ing summary judgment after a full trialon the merits. 562 U.S. at 183–84, 131S.Ct. 884. Even assuming our court’s lim-ited exception for reviewing a denial ofsummary judgment for legal error, seeEscriba, 743 F.3d at 1243, survives Ortizwithout change, we reiterate, without re-capitulating our earlier analysis, supraPart II, that the dissent’s attempt to dis-tinguish Ortiz and latch onto the excep-tion outlined in Escriba is futile in thiscase. This case ‘‘hardly present[s] ‘purelylegal’ issues capable of resolution ‘withreference only to undisputed facts.’ ’’ Or-tiz, 562 U.S. at 189, 131 S.Ct. 884. Eventhough the dissent’s musicological exeges-is has no bearing on our analysis at thisprocedural stage of the case, it clearlyshows that the facts in this case are hotlydisputed and that the case does not just

24. Additional authorities support our conclu-sion. See In re Paoli R.R. Yard PCB Litig., 221F.3d 449, 469 (3d Cir. 2000) (‘‘The generalrule in this circuit and others is that a districtcourt, in exercising its equitable discretion,may apportion costs between the prevailingand non-prevailing parties as it sees fit.’’);Amarel v. Connell, 102 F.3d 1494, 1524 (9th

Cir. 1997) (instructing the district court to‘‘await the outcome of the [Sherman Act]Section 1 claim to ascertain whether alloca-tion of costs is necessary,’’ rather than ‘‘at-tempting to award partial costs at this junc-ture,’’ where defendants prevailed on theSection 2 claim, but we remanded the Sec-tion 1 claim for a new trial).


involve pure issues of law. The dissentcites no controlling law authorizing it toundertake its own summary judgmentanalysis at this stage of the case.

Second, the Thicke Parties, like theGayes, failed to make a Rule 50(a) motionfor judgment as a matter of law at trial.Their failure to do so ‘‘precludes consider-ation of a Rule 50(b) motion for judgmentas a matter of law.’’ Tortu, 556 F.3d at1083.25 Just as the district court could notenter judgment as a matter of law for theThicke Parties, we cannot do so either.

This procedural limitation is well worthunderscoring. We held, in a case in which aparty made an oral Rule 50(a) motion, butfailed to renew its motion, that the party‘‘waived its challenge to the sufficiency ofthe evidence because it did not renew itspre-verdict Rule 50(a) motion by filing apost-verdict Rule 50(b) motion.’’ NitcoHolding Corp. v. Boujikian, 491 F.3d1086, 1089 (9th Cir. 2007). We further heldthat, under the Supreme Court’s decisionin Unitherm Food Systems, Inc. v. Swift–Eckrich, Inc., 546 U.S. 394, 126 S.Ct. 980,163 L.Ed.2d 974 (2006), the party’s failureto renew a Rule 50(a) motion ‘‘precluded[us] from exercising our discretion to en-gage in plain error review.’’ Nitco, 491F.3d at 1089–90. We thus overruled our‘‘prior decisions permit[ing] a discretionaryplain error review’’ in the absence of aRule 50(a) motion ‘‘as in conflict with con-trolling Supreme Court authority.’’ Id. (cit-ing Miller v. Gammie, 335 F.3d 889, 900(9th Cir. 2003) (en banc) ). Thus, when westitch together Rule 50’s requirementswith our case law, we are left with thisresult: Because ‘‘a post-verdict motion un-

der Rule 50(b) is an absolute prerequisiteto any appeal based on insufficiency of theevidence,’’ id. at 1089, and because a Rule50(a) motion is, in turn, a prerequisite fora Rule 50(b) motion, see Tortu, 556 F.3d at1081–83, an advocate’s failure to complywith Rule 50’s requirements gives us seri-ous pause, and compels us to heighten thelevel of deference we apply on appeal.

The dissent cites Anderson v. LibertyLobby, Inc., 477 U.S. 242, 251–52, 106 S.Ct.2505, 91 L.Ed.2d 202 (1986), for the propo-sition that ‘‘reviewing a summary judg-ment ruling and a jury verdict’’ are twosides of the same coin. The dissent makesan important omission, however. The Su-preme Court observed that the standard ofreview for a directed verdict motion resem-bles that for a motion for summary judg-ment:

[T]he ‘‘genuine issue’’ summary judg-ment standard is ‘‘very close’’ to the‘‘reasonable jury’’ directed verdict stan-dard: ‘‘The primary difference betweenthe two motions is procedural; summaryjudgment motions are usually made be-fore trial and decided on documentaryevidence, while directed verdict motionsare made at trial and decided on theevidence that has been admitted.’’

Id. (quoting Bill Johnson’s Rests., Inc. v.N.L.R.B., 461 U.S. 731, 745 n.11, 103 S.Ct.2161, 76 L.Ed.2d 277 (1983) ). As neither ofthe parties made a motion for a directedverdict, we lack a procedural mechanismfor resurrecting a summary judgment-stage analysis. As we have emphasizedrepeatedly, our review on appeal is neces-sarily circumscribed.

25. Even in a case where the defendant arguedthat the district court ‘‘induced him not to file[a] Rule 50(a) motion,’’ we nonetheless ad-hered to the strict requirements of Rule 50,noting that the defendant still ‘‘could havefiled a Rule 50(a) motion TTT before the mat-ter had been submitted to the jury,’’ and hold-ing that the defendant’s ‘‘disregard[ ]’’ of Rule

50’s ‘‘clear requirements’’ foreclosed the pos-sibility of relief pursuant to Rule 50(b). Tortu,556 F.3d at 1083. Here, the Thicke Partiescould—and should—have filed a Rule 50(a)motion in order to preserve their ability tomake a Rule 50(b) motion, regardless ofwhether or not the district court would havegranted the motion.


The dissent cites a number of cases itclaims support the proposition that a courtmust award judgment as a matter of lawwhen it is able to determine substantialsimilarity, or lack thereof, under the ex-trinsic test. None of the cases the dissentcites, however, authorizes us to review afactbound summary judgment denial aftera full trial on the merits, or to enter judg-ment as a matter of law in the absence of aRule 50(a) motion below. All of the casescited in the dissent arise from a differentprocedural posture, and are clearly distin-guishable. See Rentmeester v. Nike, Inc.,883 F.3d 1111, 1116 (9th Cir. 2018) (re-viewing grant of motion to dismiss); Folk-ens v. Wyland Worldwide, LLC, 882 F.3d768, 773 (9th Cir. 2018) (reviewing grant ofsummary judgment); Antonick v. Elec.Arts, Inc., 841 F.3d 1062, 1065 (9th Cir.2016) (reviewing grant of judgment as amatter of law); Peters v. West, 692 F.3d629, 632 (7th Cir. 2012) (reviewing grant ofmotion to dismiss); Mattel, 616 F.3d at912–13, 918 (vacating equitable reliefawarded by district court on othergrounds, where the district court had‘‘made its own infringement findings indetermining whether Mattel was entitledto equitable relief’’ (emphasis added) ); Be-nay, 607 F.3d at 622 (reviewing grant ofsummary judgment); Newton v. Diamond,388 F.3d 1189, 1190 (9th Cir. 2004) (re-viewing grant of summary judgment); Cal-houn v. Lillenas Publ’g, 298 F.3d 1228,1232 (11th Cir. 2002) (per curiam) (review-ing grant of summary judgment). More-over, to the extent the citations to unpub-lished dispositions in the dissent carry anyweight, which we question, they, too, pro-vide no support for what the dissent seeksto accomplish. See Briggs v. Sony PicturesEntm’t, Inc., No. 14-17175, 714 Fed.Appx.712, 713–14, 2018 WL 1099694, at *1 (9thCir. Mar. 1, 2018) (reviewing grant of sum-mary judgment); Silas v. Home Box Of-fice, Inc., No. 16-56215, 713 Fed.Appx. 626,627, 2018 WL 1018332, at *1 (9th Cir. Feb.

22, 2018) (reviewing grant of motion todismiss); Mintz v. Subaru of Am., Inc.,No. 16-16840, 716 Fed.Appx. 618, ––––,2017 WL 6331141, at *1 (9th Cir. Dec. 12,2017) (reviewing grant of motion to dis-miss); Edwards v. Cinelou Films, 696 Fed.Appx. 270, 270 (9th Cir. 2017) (reviewinggrant of motion to dismiss); Heusey v.Emmerich, 692 Fed.Appx. 928, 928–29 (9thCir. 2017) (reviewing grant of motion todismiss); Braddock v. Jolie, 691 Fed.Appx.318, 319 (9th Cir. 2017) (reviewing grant ofmotion for judgment on the pleadings);Basile v. Twentieth Century Fox FilmCorp., 678 Fed.Appx. 576, 576 (9th Cir.2017) (reviewing grant of motion to dis-miss).

The dissent’s remaining alternative toentering judgment as a matter of law forthe Thicke Parties is to vacate the judg-ment and remand for a new trial. Althoughthe dissent does not state so expressly, itappears that the dissent would reverse thedistrict court’s denial of the Thicke Par-ties’ motion for a new trial on grounds thatthe verdict is against the clear weight ofthe evidence.

Assuming, arguendo, that is the routethe dissent wishes to pursue, it neverthe-less runs into several hurdles. Critically,there is no reference to the deferentialstandard of review applicable to the dis-trict court’s denial of the Thicke Parties’motion for a new trial. Indeed, there is nodiscussion of the district court’s denial ofthe motion for a new trial at all. It bearsrepeating, then, that we are bound by the‘‘ ‘limited nature of our appellate function’in reviewing the district court’s denial of amotion for a new trial.’’ Lam, 869 F.3d at1084 (quoting Kode, 596 F.3d at 612). As isthe case here, ‘‘where the basis of a Rule59 ruling is that the verdict is not againstthe weight of the evidence, the districtcourt’s denial of a Rule 59 motion is virtu-ally unassailable.’’ Id. (quoting Kode, 596


F.3d at 612). Under these circumstances,‘‘only TTT an absolute absence of evidenceto support the jury’s verdict’’ will result inreversal. Id. (quoting Kode, 596 F.3d at612). ‘‘Although the trial judge can weighthe evidence and assess the credibility ofwitnesses, we may not.’’ Kode, 596 F.3d at612; see also Landes Constr. Co. v. RoyalBank of Can., 833 F.2d 1365, 1372 (9th Cir.1987) (‘‘[W]e cannot weigh the evidence forourselves TTTT’’).

In a thorough order, the district courtreviewed the evidence presented at trial,and concluded that the verdict was notagainst the clear weight of the evidence. Infaulting us for ‘‘tellingly refus[ing] to ex-plain’’ the evidence supporting the verdict,the dissent ignores the weighty restric-tions on our review at this proceduralstage of the case. The dissent jettisons theconstraints on our review, instead optingfor the radical route of playing both expertand juror. The dissent weighs the experts’credibility, resolves factual conflicts, andsets forth its own findings on the extrinsictest.26 We decline the dissent’s invitation toinvade the province of the jury: Applyingthe proper standard of review, one simplycannot say truthfully that there was anabsolute absence of evidence supportingthe jury’s verdict in this case.

To buttress this point, in Swirsky, wereversed the district court’s grant of sum-mary judgment of non-infringement, find-ing the district court erred, in large part,by conducting an analysis similar to theone the dissent has undertaken here. See376 F.3d at 846–49. Two of our conclusionsin Swirsky are particularly relevant here.First, we held that the district court erredin discounting the expert’s musical meth-odology on technical grounds. See id. at846–47. For example, the district court

rejected the expert’s ‘‘selective’’ choice to‘‘discount[ ] notes that he characterize[d]as ‘ornamental,’ ’’ and discredited the ex-pert’s opinion that, ‘‘even though measurethree of both choruses were not identicalin numerical pitch sequence or note selec-tion,’’ they emphasized the same scale de-gree and resolved similarly. Id. We ob-served that ‘‘[t]here is nothing inherentlyunsound about [the expert’s] musicologicalmethodology,’’ id. at 846, and we similarlydecline to conclude otherwise in this case.

Second, we held in Swirsky that thedistrict court ‘‘erred by basing its compari-son of the two choruses almost entirely ona measure-by-measure comparison of me-lodic note sequences from the full tran-scriptions of the choruses.’’ Id. at 847. Inso holding, we reiterated our case law. Westressed that ‘‘substantial similarity can befound in a combination of elements, even ifthose elements are individually unprotect-ed.’’ Id. at 848; see also Three Boys Music,212 F.3d at 485 (‘‘It is well settled that ajury may find a combination of unprotecti-ble elements to be protectible under theextrinsic test because ‘ ‘‘the over-all impactand effect indicate substantial appropria-tion.’’ ’ ’’ (quoting Krofft, 562 F.2d at1169) ). In fact, ‘‘[e]ven if a copied portionbe relatively small in proportion to theentire work, if qualitatively important, thefinder of fact may properly find substantialsimilarity.’’ Swirsky, 376 F.3d at 852 (al-teration in original) (quoting Baxter v.MCA, Inc., 812 F.2d 421, 425 (9th Cir.1987) ). Thus, even ‘‘an arrangement of alimited number of notes can garner copy-right protection.’’ Id. at 851. If taken to itslogical conclusion, the dissent’s musicologi-cal analysis and approach would sound the

26. The dissent does not mention the fact thatthe jury also considered the intrinsic test inreaching its verdict. The dissent correctlystops short of explicitly ‘‘second-guess[ing]

the jury’s application of the intrinsic test,’’Three Boys Music, 212 F.3d at 485, which isreserved exclusively for the trier of fact, Be-nay, 607 F.3d at 624.


death knell for these governing legal prin-ciples.

Consider the principle that, at summaryjudgment, so long as the Gayes ‘‘presented‘indicia of a sufficient disagreement con-cerning the substantial similarity of [the]two works,’ then the case must be submit-ted to a trier of fact.’’ Id. at 844 (alterationin original) (emphasis added) (quotingBrown Bag Software v. Symantec Corp.,960 F.2d 1465, 1472 (9th Cir. 1992) ). Torequire that a case be submitted to a trierof fact if there is any ‘‘indicia’’ of a dis-agreement regarding substantial similari-ty, only to impose on the district court thetask of independently scrutinizing the ex-pert testimony presented at trial, wouldturn our law on its head. Worse still, torequire a district court to do so in theabsence of a Rule 50 motion defies law andlogic.

Moreover, the expert review conductedby the dissent does not provide a workablestandard for district courts to follow. It isunrealistic to expect district courts to pos-sess even a baseline fluency in musicology,much less to conduct an independent musi-cological analysis at a level as exacting asthe one used by the dissent. After all, werequire parties to present expert testimo-ny in musical infringement cases for areason. See id. at 845.

The dissent has failed to take into ac-count another wrinkle that would ensuefrom vacating the judgment and remand-ing the case for a new trial. The Gayeshave cross-appealed protectively, challeng-ing the district court’s interpretation of the1909 Act, in the event a new trial is or-dered. Even though a vacatur and remandwould trigger the Gayes’ protective cross-

appeal, the dissent does not wrestle withthe merits of this issue. While the dissentis adamant that the scope of the Gayes’copyright is limited to the four corners ofthe deposit copy, it provides no statutoryinterpretation or legal analysis supportingits assertion.

Lastly, the dissent prophesies that ourdecision will shake the foundations of copy-right law, imperil the music industry, andstifle creativity. It even suggests that theGayes’ victory will come back to hauntthem, as the Gayes’ musical compositionsmay now be found to infringe any numberof famous songs preceding them. Respect-fully, these conjectures are unfounded hy-perbole.27 Our decision does not grant li-cense to copyright a musical style or‘‘groove.’’ Nor does it upset the balanceCongress struck between the freedom ofartistic expression, on the one hand, andcopyright protection of the fruits of thatexpression, on the other hand. Rather, ourdecision hinges on settled procedural prin-ciples and the limited nature of our appel-late review, dictated by the particular pos-ture of this case and controlling copyrightlaw. Far from heralding the end of musicalcreativity as we know it, our decision, evenconstrued broadly, reads more accuratelyas a cautionary tale for future trial counselwishing to maximize their odds of success.

CONCLUSION

We have decided this case on narrowgrounds. Our conclusions turn on the pro-cedural posture of the case, which requiresus to review the relevant issues underdeferential standards of review. For theforegoing reasons, we reverse the districtcourt’s entry of judgment against Harris

27. Unlike the 1909 Act, the current copyrightregime, established by the 1976 Act, protects‘‘works of authorship’’ fixed in ‘‘sound re-cordings.’’ 17 U.S.C. § 102. Despite the dis-sent’s prediction that our decision will‘‘strike[ ] a devastating blow to future musi-

cians and composers everywhere,’’ the realityis that, going forward, a number of the con-tentious issues presented in this case will oc-cur with less frequency with the passage oftime.


and the Interscope Parties, and affirm theremainder of the district court’s judgment,and its order denying attorney’s fees andapportioning costs.

The parties shall bear their own costs onappeal.

AFFIRMED IN PART, REVERSEDIN PART.

NGUYEN, Circuit Judge, dissenting:

The majority allows the Gayes to accom-plish what no one has before: copyright amusical style. ‘‘Blurred Lines’’ and ‘‘Got toGive It Up’’ are not objectively similar.They differ in melody, harmony, andrhythm. Yet by refusing to compare thetwo works, the majority establishes a dan-gerous precedent that strikes a devastat-ing blow to future musicians and compos-ers everywhere.

While juries are entitled to rely on prop-erly supported expert opinion in determin-ing substantial similarity, experts must beable to articulate facts upon which theirconclusions—and thus the jury’s find-ings—logically rely. Here, the Gayes’ ex-pert, musicologist Judith Finell, cherry-picked brief snippets to opine that a ‘‘con-stellation’’ of individually unprotectable el-ements in both pieces of music made themsubstantially similar. That might be rea-sonable if the two constellations bore anyresemblance. But Big and Little Dipperthey are not. The only similarity betweenthese ‘‘constellations’’ is that they’re bothcompositions of stars.

I.

When a court, with the assistance ofexpert testimony, is able to determine sub-stantial similarity (or lack thereof) underthe extrinsic test, judgment must be givenas a matter of law. See Benay v. WarnerBros. Entm’t, Inc., 607 F.3d 620, 624 (9thCir. 2010). If, for example, the defendantcopied verbatim most of the plaintiff’swork, then the plaintiff is entitled to a

finding of substantial similarity as a mat-ter of law. See Calhoun v. Lillenas Publ’g,298 F.3d 1228, 1232 (11th Cir. 2002)(‘‘[E]ven a casual comparison of the twocompositions compels the conclusion thatthe two compositions are practically identi-cal.’’). Conversely, if the objective similari-ties between the two pieces are merelytrivial, then a verdict for the plaintiff couldnot stand. See Peters v. West, 692 F.3d629, 636 (7th Cir. 2012) (affirming dismiss-al of infringement suit where the twosongs ‘‘share[d] only small cosmetic simi-larities’’); Newton v. Diamond (‘‘NewtonII’’), 388 F.3d 1189 (9th Cir. 2004) (affirm-ing grant of summary judgment to defen-dants who appropriated a de minimis por-tion of the plaintiff’s musical compositionand used it throughout their own work).

The majority, like the district court,presents this case as a battle of the ex-perts in which the jury simply credited oneexpert’s factual assertions over another’s.To the contrary, there were no materialfactual disputes at trial. Finell testifiedabout certain similarities between the de-posit copy of the ‘‘Got to Give It Up’’ leadsheet and ‘‘Blurred Lines.’’ PharrellWilliams and Robin Thicke don’t contestthe existence of these similarities. Rather,they argue that these similarities are in-sufficient to support a finding of substan-tial similarity as a matter of law. Themajority fails to engage with this argu-ment.

Finell identified a few superficial simi-larities at the ‘‘cell’’ level by focusing onindividual musical elements, such asrhythm or pitch, entirely out of context.Most of these ‘‘short TTT pattern[s]’’ wer-en’t themselves protectable by copyright,and Finell ignored both the other elementswith which they appeared and their overallplacement in each of the songs. Her analy-sis is the equivalent of finding substantialsimilarity between two pointillist paintingsbecause both have a few flecks of similarly


colored paint. A comparison of the depositcopy of ‘‘Got to Give it Up’’ and ‘‘BlurredLines’’ under the extrinsic test leads toonly one conclusion. Williams and Thickewere entitled to judgment as a matter oflaw.

II.

A.The purpose of copyright law is to en-

sure a robust public domain of creativeworks. See Sony Corp. of Am. v. UniversalCity Studios, Inc., 464 U.S. 417, 429, 104S.Ct. 774, 78 L.Ed.2d 574 (1984). While theConstitution authorizes Congress to grantauthors monopoly privileges on the com-mercial exploitation of their output, seeU.S. Const. art. I, § 8, cl. 8, this ‘‘specialreward’’ is primarily designed to motivateauthors’ creative activity and thereby ‘‘al-low the public access to the products oftheir genius.’’ Sony Corp., 464 U.S. at 429,104 S.Ct. 774. Accordingly, copyrights arelimited in both time and scope. See U.S.Const. art. I, § 8, cl. 8 (providing copyrightprotection only ‘‘for limited Times’’); SonyCorp., 464 U.S. at 432, 104 S.Ct. 774 (‘‘Thisprotection has never accorded the copy-right owner complete control over all pos-sible uses of his work.’’); see also Berlin v.E.C. Publ’ns, Inc., 329 F.2d 541, 544 (2dCir. 1964) (‘‘[C]ourts in passing upon par-ticular claims of infringement must occa-sionally subordinate the copyright holder’sinterest in a maximum financial return tothe greater public interest in the develop-ment of art, science and industry.’’).

An important limitation on copyrightprotection is that it covers only an au-thor’s expression—as opposed to the ideaunderlying that expression. See 17 U.S.C.§ 102(a) (‘‘Copyright protection subsistsTTT in original works of authorship fixedin any tangible medium of expression TTTfrom which they can be perceived, repro-duced, or otherwise communicatedTTTT’’); id. § 102(b) (‘‘In no case does

copyright protection TTT extend to anyidea, procedure, process, system, methodof operation, concept, principle, or discov-ery, regardless of the form in which it isdescribed, explained, illustrated, or em-bodied in [the author’s original] work.’’).Copyright ‘‘encourages others to buildfreely upon the ideas and informationconveyed by a work.’’ Feist Publ’ns, Inc.v. Rural Tel. Serv. Co., 499 U.S. 340,349–50, 111 S.Ct. 1282, 113 L.Ed.2d 358(1991) (citing Harper & Row Publishers,Inc. v. Nation Enters., 471 U.S. 539,556–57, 105 S.Ct. 2218, 85 L.Ed.2d 588(1985) ).

The idea/expression dichotomy, as thisprinciple is known, ‘‘strikes a definitionalbalance between the First Amendment andthe Copyright Act.’’ Bikram’s Yoga Coll. ofIndia, L.P. v. Evolation Yoga, LLC, 803F.3d 1032, 1037 (9th Cir. 2015) (quotingHarper & Row, 471 U.S. at 556, 105 S.Ct.2218) (alteration in Harper & Row omit-ted). Because ‘‘some restriction on expres-sion is the inherent and intended effect ofevery grant of copyright,’’ Golan v. Hold-er, 565 U.S. 302, 327–28, 132 S.Ct. 873, 181L.Ed.2d 835 (2012), the idea/expression di-chotomy serves as one of copyright law’s‘‘built-in First Amendment accommoda-tions.’’ Eldred v. Ashcroft, 537 U.S. 186,219, 123 S.Ct. 769, 154 L.Ed.2d 683 (2003)(citing Harper & Row, 471 U.S., at 560,105 S.Ct. 2218).

Such accommodations are necessary be-cause ‘‘in art, there are, and can be, few, ifany, things, which in an abstract sense, arestrictly new and original throughout.’’Campbell v. Acuff–Rose Music, Inc., 510U.S. 569, 575, 114 S.Ct. 1164, 127 L.Ed.2d500 (1994) (quoting Emerson v. Davies, 8F. Cas. 615, 619 (C.C.D. Mass. 1845) (Sto-ry, J.) ). Every work of art ‘‘borrows, andmust necessarily borrow, and use muchwhich was well known and used before.’’Id. (quoting Emerson, 8 F. Cas. at 619);see 1 Melville D. Nimmer & David Nim-


mer, Nimmer on Copyright § 2.05[B] (rev.ed. 2017) (‘‘In the field of popular songs,many, if not most, compositions bear somesimilarity to prior songs.’’).1 But for thefreedom to borrow others’ ideas and ex-press them in new ways, artists wouldsimply cease producing new works—to so-ciety’s great detriment.

B.‘‘Blurred Lines’’ clearly shares the same

‘‘groove’’ or musical genre as ‘‘Got to GiveIt Up,’’ which everyone agrees is an unpro-tectable idea. See, e.g., 2 William F. Patry,Patry on Copyright § 4:14 (2017)(‘‘[T]here is no protection for a communalstyle TTTT’’). But what the majority over-looks is that two works in the same genremust share at least some protectable ex-pression in order to run afoul of copyrightlaw.

Not all expression is protectable. Origi-nality, the ‘‘sine qua non of copyright,’’accommodates authors’ need to build onthe works of others by requiring copy-rightable expression to be ‘‘independentlycreated by the author’’ and have ‘‘at leastsome minimal degree of creativity.’’ Feist,499 U.S. at 345, 348, 111 S.Ct. 1282. If anauthor uses commonplace elements thatare firmly rooted in the genre’s tradition,the expression is unoriginal and thus un-copyrightable. See id. at 363, 111 S.Ct.1282.

Even original expression can be so inti-mately associated with the underlying idea

as to be unprotectable. Under the doctrineof scenes a faire, ‘‘expressions that arestandard, stock, or common to a particularsubject matter or medium are not protect-able under copyright law.’’ Satava v. Low-ry, 323 F.3d 805, 810 (9th Cir. 2003) (citingSee v. Durang, 711 F.2d 141, 143 (9th Cir.1983) ). The doctrine of merger providesthat ‘‘where an idea contained in an ex-pression cannot be communicated in a widevariety of ways,’’ the ‘‘idea and expressionmay merge TTT [such] that even verbatimreproduction of a factual work may notconstitute infringement.’’ Allen v. Acad.Games League of Am., Inc., 89 F.3d 614,617 (9th Cir. 1996); see also Rice v. FoxBroad. Co., 330 F.3d 1170, 1175 (9th Cir.2003) (‘‘[S]imilarities derived from the useof common ideas cannot be protected; oth-erwise, the first to come up with an ideawill corner the market.’’ (quoting AppleComputer, Inc. v. Microsoft Corp., 35 F.3d1435, 1443 (9th Cir. 1994) ) ).

The majority begins its analysis by sug-gesting that the Gayes enjoy broad copy-right protection because, as a category,‘‘[m]usical compositions are not confined toa narrow range of expression.’’ Maj. Op. at1164. But the majority then contrasts thisprotected category as a whole with specificapplications of other protected catego-ries—the ‘‘page-shaped computer desktopicon’’ in Apple Computer (an audiovisualwork) and the ‘‘glass-in-glass jellyfishsculpture’’ in Satava (a pictorial, graphic,and sculptural work)2—that were entitled

1. As an example, Williams and Thicke at-tempted to show the jury a video demonstrat-ing how a common sequence of four chordsserves as the harmonic backbone of innumer-able songs. See Axis of Awesome, 4 ChordSong (with song titles), YouTube (Dec. 10,2009) https://www.youtube.com/watch?v=5pidokakU4I (singing 38 popular songs overthe same chord progression, ranging from‘‘Let It Be’’ by the Beatles to ‘‘If I Were aBoy’’ by Beyonce). ‘‘Blurred Lines’’ employsonly two chords—the first two from this se-

quence. The district court prevented the juryfrom hearing this evidence. However, thecourt allowed the jury to hear mashups of‘‘Blurred Lines’’ played together with ‘‘Got toGive It Up,’’ which the Gayes used to showthat the two songs were harmonically similar.

2. The Copyright Act expressly protects each ofthese categories. See 17 U.S.C. § 102(a)(2)(musical works); id. § 102(a)(5) (pictorial,graphic, and sculptural works); id.


only to thin copyright protection due to thelimited number of ways in which theycould be expressed. That’s a false compari-son. Under the majority’s reasoning, thecopyrights in the desktop icon and glassjellyfish should have been broad. Like mu-sical compositions, both audiovisual worksand pictorial, graphic, and sculpturalworks can be expressed in myriad ways.

More importantly, ‘‘[t]he mere fact thata work is copyrighted does not mean thatevery element of the work may be protect-ed.’’ Feist, 499 U.S. at 348, 111 S.Ct. 1282.Application of the extrinsic test ‘‘requiresbreaking the [copyrighted and allegedlyinfringing] works down into their constitu-ent elements, and comparing those ele-ments for proof of copying as measured bysubstantial similarity.’’ Swirsky v. Carey,376 F.3d 841, 845 (9th Cir. 2004) (internalquotation marks omitted). ‘‘Because therequirement is one of substantial similarityto protected elements of the copyrightedwork, it is essential to distinguish betweenthe protected and unprotected materialTTTT’’ Id. We then ‘‘apply the limiting doc-trines, subtracting the unoriginal ele-ments,’’ to determine how ‘‘broad’’ or‘‘thin’’ the remaining copyright is. Ets–Hokin v. Skyy Spirits, Inc., 323 F.3d 763,766 (9th Cir. 2003) (citing Apple Computer,35 F.3d at 1442).

The majority doesn’t explain what ele-ments are protectable in ‘‘Got to Give ItUp,’’ which is surprising given that ourreview of this issue is de novo. See Mattel,Inc. v. MGA Entm’t, Inc., 616 F.3d 904,914 (9th Cir. 2010). But by affirming thejury’s verdict, the majority implicitly

draws the line between protectable andunprotectable expression ‘‘so broadly thatfuture authors, composers and artists willfind a diminished store of ideas on whichto build their works.’’ Oravec v. SunnyIsles Luxury Ventures, L.C., 527 F.3d1218, 1225 (11th Cir. 2008) (quoting Meadev. United States, 27 Fed.Cl. 367, 372 (Fed.Cl. 1992) ).

Worse still, the majority invokes the oft-criticized ‘‘inverse ratio’’ rule to suggestthat the Gayes faced a fairly low bar inshowing substantial similarity just becauseWilliams and Thicke conceded access to‘‘Got to Give It Up.’’3 See Maj. Op. at 1163.The issue, however, isn’t whether Williamsand Thicke copied ‘‘Got to Give It Up’’—there’s plenty of evidence they were at-tempting to evoke Marvin Gaye’s style.Rather, the issue is whether they took toomuch.

Copying in and of itself ‘‘is not conclu-sive of infringement. Some copying is per-mitted.’’ Newton II, 388 F.3d at 1193(quoting West Publ’g Co. v. EdwardThompson Co., 169 F. 833, 861 (E.D.N.Y.1909) (Hand, J.) ). Copying will only havelegal consequences if it ‘‘has been done toan unfair extent.’’ Id. (quoting West Publ’g,169 F. at 861). In determining liability forcopyright infringement, the critical and ul-timate inquiry is whether ‘‘the copying issubstantial.’’ Id.

Requiring similarities to be substantialis of heightened importance in cases in-volving musical compositions. Sound re-cordings have ‘‘unique performance ele-ments’’ that must be ‘‘filter[ed] out TTT

§ 102(a)(6) (motion pictures and other audio-visual works).

3. See 4 Nimmer & Nimmer, supra, § 13.03[D](discussing ‘‘[t]he flawed proposition thatpowerful proof of access can substitute fordemonstration of the requisite degree of sub-stantial similarity’’); 3 Patry, supra, § 9:91(‘‘The inverse ratio theory confuses funda-

mental principles of infringement analysis:access is relevant only in establishing the actof copying, not in establishing the degreethereof. Once copying is established, access isirrelevant and the inquiry shifts to the finalstage of the infringement analysis, materialappropriation. At that stage, substantial simi-larity is the sole issue.’’ (footnote omitted) ).


from consideration.’’ Newton II, 388 F.3dat 1194. Thus, the range of musical expres-sion is necessarily more circumscribedwhen music is written down than when itis performed. ‘‘Given the limited number ofmusical notes (as opposed to words in alanguage), the combination of those notesand their phrasing, it is not surprising thata simple composition of a short lengthmight well be susceptible to original cre-ation by more than one composer.’’ Cal-houn, 298 F.3d at 1232 (footnote omitted).

III.The Gayes don’t contend that every as-

pect of ‘‘Blurred Lines’’ infringes ‘‘Got toGive It Up.’’ Rather, they identify only afew features that are present in bothworks. These features, however, aren’t in-dividually protectable. And when consid-ered in the works as a whole, these simi-larities aren’t even perceptible, let alonesubstantial.

Musical compositions are expressed pri-marily through the building blocks of mel-ody, harmony, and rhythm.4 See Newton v.Diamond (‘‘Newton I’’), 204 F.Supp.2d1244, 1249 (C.D. Cal. 2002) (citing 3 Nim-mer & Nimmer, supra, § 2.05[D] ); Ran-del, supra, at 481 (‘‘The whole of music isoften informally divided into three do-mains: melody, harmony, and rhythm.’’);see generally Aaron Copland, What to Lis-ten for in Music 33–77 (McGraw–Hill1957). The deposit copy of ‘‘Got to Give it

Up’’ employs these components through amelodic line, an introductory bass line, andchord indications, with the additional fea-ture of lyrics.

The melodic line and the associated lyr-ics are notated throughout the depositcopy. The bass line is notated for only thefirst eight measures,5 at the end of whichthe phrase ‘‘bass simile’’ indicates that thebass line should continue in a similar man-ner. As is typical of a lead sheet, thechords are not expressed with individualnotes indicating pitch and duration. Rath-er, the chords are described by name (e.g.,‘‘A7’’ for a chord containing the pitches A,C#, E, and G) at places in the song wherethe harmony changes.

A. Alleged Melodic Similarities

1. The ‘‘Signature’’ Phrase

Finell dubbed a 10–note melodic se-quence in the deposit copy the ‘‘SignaturePhrase.’’ She argued that it correspondedto a 12–note sequence in ‘‘Blurred Lines,’’notwithstanding that ‘‘no two notes havethe same pitch, rhythm and placement,’’ asthe district court correctly observed.

Finell identified four similar elements,none of which is protectable: (a) eachphrase begins with repeated notes; (b) thephrases have three identical pitches in arow in the first measure and two in thesecond measure; (c) each phrase begins

4. Of course, these aren’t the only elementsthrough which a musical idea can be ex-pressed in tangible form. See Swirsky, 376F.3d at 848–49. Other elements include tempo(the speed at which a composition is played),dynamics (the volume of sound), and instru-mentation. See id. Many elements can be bro-ken down into constituent elements. For ex-ample, melody is a sequence of pitches playedsuccessively; harmony is a group of pitchesplayed simultaneously; and a chord progres-sion is a sequence of harmonies. See DonMichael Randel, The New Harvard Dictionaryof Music 366, 481–82 (1986). The analysis will

generally focus on the most relevant subset ofelements, which depends on the nature of themusic at issue. See Swirsky, 376 F.3d at 849.Finell did not compare the songs’ overall har-monies because she felt ‘‘that wasn’t the mostimportant similarity.’’

5. In musical notation, the notes signifyingindividual pitches are grouped into ‘‘meas-ures’’ divided by vertical ‘‘bar’’ lines. Within ameasure, the note immediately after the barline, or ‘‘downbeat,’’ receives the greatest em-phasis.


with the same rhythm; and (d) each phraseends on a melisma (one word sung overmultiple pitches).

a. Repeated Notes

The Signature Phrase begins in ‘‘Got toGive It Up’’ with a note repeated fourtimes. In ‘‘Blurred Lines,’’ it begins with anote repeated twice, followed by a differ-ent note, followed by the first note.6 Theuse of repeating notes is obviously notoriginal to ‘‘Got to Give It Up.’’ Finellrepeatedly used the song ‘‘Happy Birthdayto You’’ and the opening to Beethoven’sFifth Symphony as musical examples.Each of these famous melodies from thenineteenth century begins with repeatednotes. Therefore, the use of repeated notesis not protectable.

b. Pitch Similarity

Although the Signature Phrase starts ondifferent pitches in each piece, Finell iden-tified three consecutive ascending pitchesthat were the same in both pieces, and twoconsecutive descending pitches that werethe same. She believed this similarity to bethe most important.

In assessing the similarity of two piecesof music, it’s important to keep in mind‘‘the limited number of notes and chordsavailable to composers and the resultingfact that common themes frequently reap-pear in various compositions, especially inpopular music.’’ Gaste v. Kaiserman, 863F.2d 1061, 1068 (2d Cir. 1988) (citing Arn-

6. Finell attempted to minimize the signifi-cance of the third note in ‘‘Blurred Lines’’moving to a neighboring pitch rather thanrepeating. However, she previously testifiedthat the neighboring pitch—a sharp secondscale degree (indicated ‘‘#2’’ in her exhibit)—

was a ‘‘broken rule’’ that ‘‘stands out.’’ Thus,the most prominent note in the four-note se-quence in ‘‘Blurred Lines’’ is the one thatdiffers from the corresponding sequence in‘‘Got to Give It Up.’’


stein v. Edward B. Marks Music Corp., 82F.2d 275, 277 (2d Cir. 1936) ). Substantialsimilarity ‘‘must extend beyond themesthat could have been derived from a com-mon source or themes that are so trite asto be likely to reappear in many composi-tions.’’ Id. at 1068–69 (citing Selle v. Gibb,741 F.2d 896, 905 (7th Cir. 1984) ).

Three consecutive pitches is just thesort of common theme that will recur inmany compositions.7 We have not yet ad-dressed whether three pitches are protect-able as a matter of law. While ‘‘a singlemusical note would be too small a unit toattract copyright protection TTT, an ar-rangement of a limited number of notescan garner copyright protection.’’ Swirsky,376 F.3d at 851. Thus, we held in Swirskythat a melody of seven notes is not unpro-tectable as a matter of law. Id. at 852.

In Newton II, we considered a three-note musical phrase that the defendantssampled (i.e., copied exactly) from thesound recording of a copyrighted musicalcomposition and used repeatedly through-out their work. Although we did not decidewhether this six-second segment was origi-nal enough to be protected, we held that‘‘no reasonable juror could find [it] to be aquantitatively or qualitatively significantportion of the [four-and-a-half-minute]composition as a whole.’’ Newton II, 388F.3d at 1195. The district court reachedthe originality issue. In a ‘‘scholarly opin-ion,’’ it ruled that the three-note phrase—even in combination with the backgroundmusical elements—was insufficiently origi-nal to warrant copyright protection. Id. at1190; see Newton I, 204 F.Supp.2d at 1253

(‘‘Many courts have found that nearly iden-tical or more substantial samples are notsusceptible to copyright protection.’’).

The two- and three-note melodic snip-pets at issue here, taken in isolation fromtheir harmonic context, are even less origi-nal than the three-note segment at issue inNewton. When played, each snippet lastsless than a second in a composition thatlasts over four minutes. They are not indi-vidually protectable.

c. Rhythmic Similarity

The first measure of the SignaturePhrase in both works begins with arhythm of six eighth notes. A bare rhyth-mic pattern, particularly one so short andcommon, isn’t protectable. See Batiste v.Najm, 28 F.Supp.3d 595, 616 (E.D. La.2014) (‘‘[C]ourts have been consistent infinding rhythm to be unprotectable.’’); N.Music Corp. v. King Record Distrib. Co.,105 F.Supp. 393, 400 (S.D.N.Y. 1952)(‘‘[O]riginality of rhythm is a rarity, if notan impossibility.’’); see also Berlin, 329F.2d at 545 (‘‘[W]e doubt that even soeminent a composer as plaintiff IrvingBerlin should be permitted to claim aproperty interest in iambic pentameter.’’).Here, the rhythmic pattern lasts approxi-mately 1.5 seconds and consists of aneighth note repeated without any variation.Similar patterns are found in numerousother works. This element, devoid of itsmelodic and harmonic context, lacks anyoriginality.

7. There are only 123 or 1,728 unique combi-nations of three notes, and many of them areunlikely to be used in a song. See Darrell v.Joe Morris Music Co., 113 F.2d 80, 80 (2d Cir.1940) (per curiam) (‘‘[W]hile there are anenormous number of possible permutations ofthe musical notes of the scale, only a few arepleasing; and much fewer still suit the infan-tile demands of the popular ear.’’). Finell tes-

tified that it’s ‘‘unusual’’ to use the five notesthat fall between the seven notes of the scale.Demand for unique three-note combinationswould quickly exhaust their supply. In 2016alone, the Copyright Office registered over40,000 sound recordings. See United StatesCopyright Office, Fiscal 2016 Annual Report17.


d. Melisma

The final syllable of the lyrics in eachphrase spans multiple pitches—three in‘‘Got to Give It Up’’ and two in ‘‘BlurredLines.’’ Melisma, however, is ‘‘a commonmusical technique’’ and, as such, unpro-tectable. McDonald v. West, 138 F.Supp.3d448, 458 (S.D.N.Y. 2015). Use of melismaon the final syllable of a lyrical phrase isparticularly ‘‘basic and commonplace.’’ Id.(involving melisma on the final syllable of‘‘We made it in America’’). For example,any time one sings ‘‘Happy Birthday’’ to aperson with a one-syllable name, the per-son’s name is sung as a two-note melismaat the end of the phrase ‘‘Happy Birthday,dear .’’

e. The Signature Phrases as a WholeAre Not Substantially Similar

Even when each element is not individu-ally protectable, ‘‘[t]he particular sequencein which an author strings a significantnumber of unprotectable elements can it-self be a protectable element,’’ Metcalf v.Bochco, 294 F.3d 1069, 1074 (9th Cir.2002). Here, as Finell concedes, the Signa-ture Phrase has ‘‘very few notes,’’ lastingless than four seconds. Therefore, evenassuming that the Signature Phrase as awhole is protectable, its protection is thin.

There is very little similarity betweenthe two songs’ Signature Phrases. Bothmelodies rise and fall. But they begin andend on different pitches. The highest, long-est, most stressed pitch in each phrase isdifferent—in ‘‘Blurred Lines,’’ this pitch isconsonant with the underlying harmony; in‘‘Got to Give It Up,’’ it is dissonant. Onephrase has 10 notes; the other, 12. The fiveidentical pitches in each of the phraseshave different rhythmic placement withinthe measure and therefore receive differ-ent stress. And only two of these identicalpitches have similar underlying harmo-nies.8 The harmony changes halfwaythrough the Signature Phrase in ‘‘BlurredLines’’ but remains the same in ‘‘Got toGive It Up.’’ The lyrics in each phrase aredifferent. The Signature Phrase occurs indifferent places within each piece. In ‘‘Gotto Give It Up,’’ the Signature Phrase is thevery first phrase sung. In ‘‘Blurred Lines,’’the Signature Phrase is not sung until 28seconds later—after several lines of verse.

The various unprotected elements iden-tified by Finell don’t even coincide withone another in that short, four-secondsnippet. And her narrow focus on theseelements ignored the different harmoniesin each phrase. ‘‘To pull these elements outof a song individually, without also lookingat them in combination, is to perform anincomplete and distorted musicologicalanalysis.’’ Swirsky, 376 F.3d at 848.9

8. In ‘‘Got to Give It Up,’’ the entire SignaturePhrase is harmonized to an A7 chord. In‘‘Blurred Lines,’’ the first measure is harmon-ized to an E chord while the second measureis harmonized to an A chord. Seventh chords,such as A7, have the same three pitches astheir underlying triads—here, an A chord—plus an additional pitch. See Copland, supra,at 66–67, 105 S.Ct. 471. Finell explained thatthe unique pitch in a seventh chord ‘‘add[s]an extra color’’ to the harmony.

9. The majority fundamentally misunderstandsSwirsky on this point. See Maj. Op. at 1181–82. Swirsky did not hold that two works shar-ing multiple unprotected elements in dispa-rate places are extrinsically similar. Were that

the case, the entire Western canon would beextrinsically similar, since all of this musiccontains the same twelve individually unpro-tected notes. The difference between Swirskyand this case is that in Swirsky, there was acoincidence of the unprotected elements(chord progressions, rhythm, and pitch se-quence) within each song that occurred at thesame relative place (the chorus) in both. SeeSwirsky, 376 F.3d at 848. Here, Finell exam-ined the various elements in isolation, whichis precisely what we criticized in Swirsky. See376 F.3d at 848 (‘‘[N]o approach can com-pletely divorce pitch sequence and rhythmfrom harmonic chord progression, tempo,and key TTTT’’).


Given the lack of similarities betweenthe Signature Phrases, there is no basis toconclude that they are substantially simi-lar. ‘‘The most that can be said is that thetwo segments bear some relation to oneanother within a finite world of melodies.Given the limited musical vocabulary avail-able to composers, this is far from enoughto support an inference of [infringement].’’Johnson v. Gordon, 409 F.3d 12, 22 (1stCir. 2005).

2. The ‘‘Hook’’ Phrase

Finell describes the Hook Phrase as thefour melodic pitches in ‘‘Got to Give It Up’’sung to the lyrics ‘‘keep on dancin’.’’ Sheopined that ‘‘Blurred Lines’’ has similarHook Phrases in two different places: oneis the four pitches in the Signature Phrasesung to the lyrics ‘‘take a good girl’’; the

other is the five pitches sung to the lyrics‘‘I hate these blurred lines.’’

There are basic conceptual problemswith Finell’s analysis. She describes thesame four pitches in ‘‘Blurred Lines’’ asbeing similar to two unrelated phrases in‘‘Got to Give It Up’’—the Signature Phraseand the Hook Phrase. It is difficult to seehow anything original in each of these twodifferent phrases could be distilled into thesame four-note phrase in ‘‘Blurred Lines.’’

In any event, the Hook Phrase in thedeposit copy lacks sufficient originality tobe protected. Its sequence of four pitches,lasting 2.5 seconds, is common. For exam-ple, Beyonce, Jennifer Hudson, and AnikaNoni Rose memorably sang it to the lyrics,‘‘We’re your dreamgirls.’’ See HenryKrieger & Tom Eyen, Dreamgirls meas-ures 25–26 (Universal—Geffin Music 1981).

Even if the Hook Phrase pitches wereprotectable, there is no substantial similar-ity between its expression in the two

songs. See Arnstein v. Edward B. MarksMusic Corp., 82 F.2d 275, 277 (2d Cir.1936) (Hand, J.) (‘‘The first phrase of the


infringing chorus consists of the same fournotes as the first phrase of the copyrightedsong; that particular sequence can befound in several earlier musical pieces andits spontaneous reproduction should be nocause for suspicion.’’).

At most, three of the four pitches arethe same,10 and the different pitch is sungto what Finell described as the ‘‘moneywords’’ on ‘‘the strongest beat.’’ Thephrase’s rhythms and underlying harmo-nies are different. Moreover, the phrasesare sung at different places in each song.

In ‘‘Got to Give It Up,’’ the Hook Phrase issung at the end of part 1 in a fade out. In‘‘Blurred Lines,’’ it is sung as the chorus inthe middle of the song.

3. Theme ‘‘X’’

Theme X refers to another four-notemelodic sequence. In the deposit copy,Theme X is sung to the lyrics ‘‘Fancylady.’’ In ‘‘Blurred Lines,’’ it is first sungto the lyrics ‘‘If you can’t hear.’’ Like theHook Phrase, Theme X is both unprotecta-ble and objectively dissimilar in the twosongs.

The pitches and rhythm of Theme X inthe deposit copy are identical to thosesung to ‘‘Happy Birthday’’ and numerousother songs. None of the Theme X pitches

in the deposit copy are the same as in‘‘Blurred Lines.’’ To see any correspon-dence between the two four-note se-quences, one would have to shift and invert

10. Finell cited two examples of the HookPhrase in ‘‘Blurred Lines,’’ but they shareonly the last two pitches of their four- and

five-note sequences. These two shared pitchesare both tonic notes, which Finell describedas ‘‘very common’’ in melodies.


the pitches, a feat of musical gymnasticswell beyond the skill of most listeners.Where short and distinct musical phrasesrequire such contortions just to show thatthey are musically related, there is nobasis to find them substantially similar.See Johnson, 409 F.3d at 22; see alsoArnstein, 82 F.2d at 277.

The harmonies accompanying Theme Xalso differ between ‘‘Got to Give It Up’’and ‘‘Blurred Lines.’’ Structurally, ThemeX appears in completely different places inthe two songs. In the deposit copy, itrepeats several times in succession nearthe end of the piece. In ‘‘Blurred Lines,’’ itis the very first line of verse near thebeginning of the song and repeats periodi-cally throughout the song.

B. Other Alleged Similarities

1. Keyboard Parts

Finell testified that the keyboard partsin ‘‘Got to Give It Up’’ (meaning the chordsand their rhythms played over the bassline) had ‘‘many important similarities’’ tothose in ‘‘Blurred Lines.’’ However, thereare no keyboard parts in the deposit copy.Finell explained that a lead sheet is essen-tially ‘‘musical shorthand for musicians,’’who ‘‘would understand how [the keyboardparts are] to be played.’’ But because ‘‘[a]sound is protected by copyright law onlywhen it is ‘fixed in a tangible medium,’ ’’Newton II, 388 F.3d at 1194 (quoting 17U.S.C. § 102(a) ), the deposit copy’s un-written keyboard parts are not protectedexpression.

To the extent the chord indications suffi-ciently express the keyboard parts, thereis no substantial similarity between thetwo works. ‘‘Blurred Lines’’ contains only

two chords throughout the entire piece—an A chord and an E chord—that alternateevery four measures. The deposit copycontains neither of these chords. Thechords it does contain—A7, D7, E7, B7,Dm7, and Am7—change in a much moreirregular pattern. For example, the first 16measures have a sustained A7 harmony,and the next 8 measures change harmoniesevery measure.

2. Bass Line

Finell opined that the bass melodies in‘‘Got to Give It Up’’ and ‘‘Blurred Lines’’are similar. However, when comparingthem, she showed the jury the version ofthe ‘‘Got to Give It Up’’ bass line that shehad transcribed from the sound recording.Because several notes were different in thedeposit copy, her testimony on this issuewas of questionable value. See Newton II,388 F.3d at 1196. It’s also doubtful that theunexpressed portions of the baseline be-yond the first eight measures of the depos-it copy are sufficiently fixed in a tangiblemedium to warrant protection.

Even assuming the implied bass line inthe deposit copy is sufficiently fixed, it’sthe type of expression that is so standardin the genre that it merges with the ideaand is therefore unprotectable in and ofitself. Cf. Shapiro, Bernstein & Co. v. Mir-acle Record Co., 91 F.Supp. 473, 474 (N.D.Ill. 1950) (concluding that bass line was notcopyrightable where it was ‘‘mechanicalapplication of a simple harmonious chord’’).Any thin protection that might lie in the‘‘Got to Give It Up’’ bass line would notsupport a finding of substantial similaritybetween these two bass lines given theirdifferent notes, harmonies, and rhythms.


The only similarity between the basslines is that they repeat the note A in mostof the measures. However, in ‘‘Got to GiveIt Up’’ the note is syncopated so that itsounds before the downbeat in the second,third, and fourth measures, whereas in‘‘Blurred Lines’’ the note is played on thedownbeat. Moreover, the note A is the rootof the chord in each song (A7 in ‘‘Got toGive It Up,’’ A in ‘‘Blurred Lines’’). As theexpert for Williams and Thicke testifiedwithout contradiction, it is commonplacefor the root of a chord to appear in a bassline because it establishes the chord.

3. Word Painting, Parlando,and Lyrics

Word painting and parlando are com-mon devices.11 As Finell acknowledged,word painting has ‘‘been used for manycenturies,’’ and parlando has been em-ployed for ‘‘many years before TTT rap wasused as an art form.’’ The deposit copy’suse of these techniques in the abstract isnot protectable expression, and there is noevidence that the specific applications ofthese techniques in the two pieces aresimilar. To say these two songs are sub-stantially similar because they employ de-vices common to songwriting would be likesaying two songs are substantially similarbecause they both have guitar solos in themiddle even though the solos themselvesbear no resemblance. Similarly, lyricalthemes about liberation and sexual activityare not protectable in the abstract. SeeEdwards v. Raymond, 22 F.Supp.3d 293,301 (S.D.N.Y. 2014) (citing Feist, 499 U.S.

at 344–45, 111 S.Ct. 1282); see also Peters,692 F.3d at 636.

C. Overall Lack of Similarity

Even considering all of these individual-ly unprotectable elements together, seeMetcalf, 294 F.3d at 1074, there is noevidentiary basis to conclude that the twoworks are substantially similar. See Guz-man v. Hacienda Records & RecordingStudio, Inc., 808 F.3d 1031, 1040 (5th Cir.2015) (finding no similarity where ‘‘the al-leged compositional similarities runningbetween the songs in their entirety, i.e.,their melodies, rhythmic patterns, lyricalthemes, and instrumental accompaniment,were either common to the TTT genre orcommon in other songs’’).

The two pieces have different structures.Finell acknowledged that ‘‘Got to Give ItUp’’ lacks a chorus whereas ‘‘BlurredLines’’ has a ‘‘pretty common structure fora popular song’’ in that it consists of averse, pre-chorus, and chorus. The twosongs’ harmonies share no chords.

The discrete elements identified by Fi-nell don’t occur at the same time withinthe musical theme or phrase in each piece.And with the exception of parlando, thevarious themes and phrases she identifieddon’t occur in corresponding places in eachpiece. Thus, whether considered micro- ormacroscopically, ‘‘Got to Give It Up’’ and‘‘Blurred Lines’’ are objectively dissimilar.Williams and Thicke are entitled to judg-ment as a matter of law.

11. Word painting is a compositional tech-nique in which the music can be used toillustrate the words in the lyrics, such as

setting the word ‘‘higher’’ to an ascendingmelody. Parlando is spoken word or rap inthe middle of a song.


IV.The majority insists that the verdict is

supported by the evidence but tellinglyrefuses to explain what that evidence is.Instead, it defends its decision by arguingthat a contrary result is impossible due toWilliams and Thicke’s purported procedur-al missteps. Maj. Op. at 1178–83. While theprocedural mechanism for granting reliefis beside the point given the majority’sholding, there’s no such obstacle here.

I agree that we normally are not atliberty to review the district court’s denialof summary judgment after a full trial onthe merits. See Ortiz v. Jordan, 562 U.S.180, 131 S.Ct. 884, 178 L.Ed.2d 703 (2011).This rule makes eminent sense. Once atrial has concluded, any issues relating tothe merits of the parties’ dispute ‘‘shouldbe determined by the trial record, not thepleadings nor the summary judgment rec-ord.’’ Id. at 184, 131 S.Ct. 884 (quoting 15Alan Charles Wright et al., Federal Prac-tice & Procedure § 3914.10 (2d ed. 1992 &Supp. 2010) ). However, there is little dif-ference between reviewing a summaryjudgment ruling and a jury verdict otherthan the source of the factual record, seeAnderson v. Liberty Lobby, Inc., 477 U.S.242, 251–52, 106 S.Ct. 2505, 91 L.Ed.2d 202

(1986), and here there are no materialfactual disputes. A completed trial does notprevent us from reviewing the denial ofsummary judgment ‘‘where the districtcourt made an error of law that, if notmade, would have required the districtcourt to grant the motion.’’ Escriba v. Fos-ter Poultry Farms, Inc., 743 F.3d 1236,1243 (9th Cir. 2014).12

The majority conveniently ducks any re-view of the evidence by mischaracterizingthe facts as ‘‘hotly disputed,’’ Maj. Op. at1178–79, and accusing me of ‘‘act[ing] asjudge, jury, and executioner,’’ id. at 47, by‘‘weigh[ing] the experts’ credibility, re-solv[ing] factual conflicts, and set[ting]forth [my] own findings on the extrinsictest,’’ id. at 53. But my ‘‘musicological exe-gesis,’’ id. at 48, concerns evidence of ex-trinsic similarity that Finell presented attrial. No one disputes that the two worksshare certain melodic snippets and othercompositional elements that Finell identi-fied. The only dispute regarding these sim-ilarities is their legal import—are the ele-ments protectable, and are the similaritiessubstantial enough to support liability forinfringement? See Mattel, 616 F.3d at 914(‘‘We review de novo the district court’sdetermination as to the scope of copyright

12. The majority surprisingly questions wheth-er Escriba ‘‘survives’’ Ortiz. Maj. Op. at 1165–67. Since Ortiz expressly declined to decidewhether there is an exception to the generalrule for ‘‘ ‘purely legal’ issues capable of reso-lution ‘with reference only to undisputedfacts,’ ’’ 562 U.S. at 189, 131 S.Ct. 884, itdidn’t undermine our case law. Regardless,the majority isn’t free to revisit circuit prece-dent absent intervening higher authority thatis ‘‘clearly irreconcilable’’ with it. Miller v.Gammie, 335 F.3d 889, 899–900 (9th Cir.2003) (en banc). Even if the majority werecorrect that this is a factual matter andWilliams and Thicke’s lack of a Rule 50(a)motion forfeited their right to challenge theevidentiary sufficiency—notwithstanding thedistrict court’s statement that it would notgrant Rule 50(a) motions ‘‘by either side,’’ butsee Tortu v. Las Vegas Metro. Police Dep’t, 556

F.3d 1075, 1083 (9th Cir. 2009) (leaving openpossibility that Rule 50(b) motion is not for-feited where district court instructs partiesnot to file Rule 50(a) motion); Thompson &Wallace of Memphis, Inc. v. FalconwoodCorp., 100 F.3d 429, 435 (5th Cir. 1996) (cit-ing district court’s instruction ‘‘not to makethe rule 50(a) motion’’ as ‘‘legitimate excuse’’for not making one)—we can still review thesufficiency of the evidence for plain error. SeeNitco Holding Corp. v. Boujikian, 491 F.3d1086, 1089 (9th Cir. 2007) (citing Patel v.Penman, 103 F.3d 868, 878 (9th Cir. 1996) )(contrasting Rule 50(b) motion as ‘‘absoluteprerequisite’’ for appellate relief). A decisionpermitting entire genres of music to be heldhostage to infringement suits is a ‘‘manifestmiscarriage of justice,’’ Patel, 103 F.3d at878, warranting relief.


protection.’’ (citing Ets–Hokin v. SkyySpirits, Inc., 225 F.3d 1068, 1073 (9th Cir.2000)) ); Benay, 607 F.3d at 624 (‘‘Substan-tial similarity is a fact-specific inquiry, butit ‘ ‘‘may often be decided as a matter oflaw.’’ ’ ’’ (quoting Funky Films, Inc. v.Time Warner Entm’t Co., 462 F.3d 1072,1076 (9th Cir. 2006) ) ).

By characterizing these questions as afactual dispute among experts, the majori-ty lays bare its misconception about thepurpose of expert testimony in music in-fringement cases. As with any expert wit-ness, a musicologist can’t opine on legalconclusions, including the ultimate ques-tion here—substantial similarity. See Na-tionwide Transp. Fin. v. Cass Info. Sys.,Inc., 523 F.3d 1051, 1058 (9th Cir. 2008);Michael Der Manuelian, Note, The Role ofthe Expert Witness in Music CopyrightInfringement Cases, 57 Fordham L. Rev.127, 138 (1988) (‘‘[E]xpert analysis is notrelevant to the determination of substan-tial similarity of expression of ideas.’’); seealso Swirsky, 376 F.3d at 851 (‘‘[A] musi-cologist is not an expert on what the term‘idea’ means under the copyright laws.’’).Her role is to identify similarities betweenthe two works, describe their nature, andexplain whether they are ‘‘quantitatively orqualitatively significant in relation to thecomposition as a whole,’’ Newton II, 388F.3d at 1196. The value of such testimonyis to assist jurors who are unfamiliar withmusical notation in comparing two piecesof sheet music for extrinsic similarity inthe same way that they would comparetwo textual works.

This result would never stand in copy-right cases involving works in other media.We ‘‘frequently’’ conclude as a matter of

law that two works of language or visualart fail the extrinsic test for substantialsimilarity. Benay, 607 F.3d at 624 (quotingFunky Films, 462 F.3d at 1077); see, e.g.,Briggs v. Sony Pictures Entm’t, Inc., No.14-17175, 714 Fed.Appx. 712, 2018 WL1099694, at *1 (9th Cir. Mar. 1, 2018)(screenplays); Rentmeester v. Nike, Inc.,883 F.3d 1111 (9th Cir. 2018) (photograph);Silas v. Home Box Office, Inc., No. 16-56215, 713 Fed.Appx. 626, 2018 WL1018332 (9th Cir. Feb. 22, 2018) (televisionshow); Folkens v. Wyland Worldwide,LLC, 882 F.3d 768 (9th Cir. 2018) (draw-ing); Mintz v. Subaru of Am., Inc., No. 16-16840, 716 Fed.Appx. 618, 2017 WL6331141 (9th Cir. Dec. 12, 2017) (advertis-ing image and phrase); Edwards v. Cine-lou Films, 696 Fed.Appx. 270 (9th Cir.2017) (film); Heusey v. Emmerich, 692Fed.Appx. 928 (9th Cir. 2017) (screenplayand film); Braddock v. Jolie, 691 Fed.Appx. 318 (9th Cir. 2017) (novel and film);Basile v. Twentieth Century Fox FilmCorp., 678 Fed.Appx. 576 (9th Cir. 2017)(stories and film); Antonick v. Elec. Arts,Inc., 841 F.3d 1062 (9th Cir. 2016) (videogame), cert. denied, ––– U.S. ––––, 138S.Ct. 422, 199 L.Ed.2d 323 (2017); see alsoMattel, 616 F.3d at 917–18 (vacating jurydetermination of substantial similarity be-tween dolls).13 This case should be no dif-ferent.

V.The Gayes, no doubt, are pleased by this

outcome. They shouldn’t be. They owncopyrights in many musical works, each ofwhich (including ‘‘Got to Give It Up’’) nowpotentially infringes the copyright of anyfamous song that preceded it.14

13. In faulting my citation of unpublishedcases, see Maj. Op. at 1179–80, the majoritymisses the point. That we choose not to pub-lish many of our numerous cases decidingsubstantial similarity as a matter of law showsonly how uncontroversial these decisions arewhen they concern non-musical works.

14. ‘‘Happy Birthday to You’’ was still copy-right protected when Marvin Gaye wroteTheme X. See Eldred, 537 U.S. at 262, 123S.Ct. 769 (2003) (Breyer, J., dissenting).

1197GLAZING HEALTH AND WELFARE FUND v. LAMEKCite as 885 F.3d 1197 (9th Cir. 2018)

That is the consequence of the majori-ty’s uncritical deference to music experts.

Admittedly, it can be very challengingfor judges untrained in music to parse twopieces of sheet music for extrinsic similari-ty. But however difficult this exercise, wecannot simply defer to the conclusions ofexperts about the ultimate finding of sub-stantial similarity.15 While experts are in-valuable in identifying and explaining ele-ments that appear in both works, judgesmust still decide whether, as a matter oflaw, these elements collectively support afinding of substantial similarity. Here, theydon’t, and the verdict should be vacated.

I respectfully dissent.

,

GLAZING HEALTH AND WELFAREFUND, Trustees; Southern NevadaGlaziers and Fabricators PensionTrust Fund; Painters, Glaziers andFloorcoverers Joint Apprenticeshipand Journeyman Training Trust;Painters, Glaziers and FloorcoverersSafety Training Trust Fund; IUPATPolitical Action Committee; SouthernNevada Painters and Decorators andGlaziers Labor–Management Cooper-ation Committee Trust; IUPAT Indus-try Pension Trust Fund; SouthernCalifornia, Arizona, Colorado andSouthern Nevada Glaziers, Architec-tural Metal and Glass Workers Pen-sion Trust Fund, Plaintiffs–Appel-lants,

v.

Michael A. LAMEK; Kelly D. Marshall,Defendants–Appellees,

and

Accuracy Glass & Mirror Company,Inc., Defendant.

No. 16-16155

United States Court of Appeals,Ninth Circuit.

Argued and Submitted November 17,2017, San Francisco, California

Filed March 21, 2018Background: Trustees of employee bene-fit trust funds brought action under Em-ployee Retirement Income Security Act(ERISA) against employer’s owners, whowere also officers of employer, allegingclaims for breach of fiduciary duty andseeking unpaid contributions allegedlyowed under contracts governing benefitplans. The United States District Court forthe District of Nevada, No. 2:13-cv-01106-KJD-NJK, Kent J. Dawson, Senior Dis-trict Judge, 2016 WL 1270991, grantedowners’ motion to dismiss. Trustees ap-pealed.Holding: The Court of Appeals, Fried-land, Circuit Judge, held that owners werenot fiduciaries under ERISA with respectto unpaid contributions.Affirmed.

Gleason, District judge, sitting by designa-tion, filed dissenting opinion.

1. Bankruptcy O3376(3)If an individual is a fiduciary under

ERISA he is also treated as a fiduciary forpurposes of bankruptcy statute providingexception to discharge for debt arising

15. Federal Rule of Evidence 706, which al-lows courts to appoint their own experts, maybe useful in situations where the court has

little musical expertise and the parties’ ex-perts deliver starkly different assessments oftwo works’ similarity.

885 f.3d 1150marvin gaye iii, an individual; nona marvisa gaye, an individual,...

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