Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 1 of 108 CA Nos. 15-56880, 16-55089, 16-55626 DC No. CV13-06004-JAK (AGRx) UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PHARRELL WILLIAMS, ET AL., Plaintiffs/Counter-Defendants/Appellants/Cross-Appellees, and MORE WATER FROM NAZARETH PUBLISHING, INC., ET AL., Counter-Defendants/Appellants/Cross-Appellees. v. FRANKIE CHRISTIAN GAYE, ET AL., Defendants/Counter-Claimants/Appellees/Cross-Appellants. Appeal From Judgment Of The United States District Court For The Central District Of California (Hon. John A. Kronstadt, Presiding) BRIEF FOR APPELLEES AND CROSS-APPELLANTS ARNOLD & PORTER LLP MARTIN R. GLICK (No. 40187) martin.glick@aporter.com DANIEL B. ASIMOW (No. 165661) daniel.asimow@aporter.com Three Embarcadero Center, 10th Floor San Francisco, California 94111-4024 Telephone: 415.471.3100 Facsimile: 415.471.3400 KING & BALLOW RICHARD S. BUSCH (TN BPR 14594) rbusch@kingballow.com STEVEN C. DOUSE (TN BPR 12896) sdouse@kingballow.com SARA R. ELLIS (TN BPR 30760) sellis@kingballow.com 315 Union Street, Suite 1100 Nashville, Tennessee 37201 Telephone: 615.259.3456 Facsimile: 615.726.5417 KING & BALLOW PAUL H. DUVALL (No. 73699) pduvall@kingballow.com 6540 Lusk Boulevard, Suite 250 San Diego, California 92121 Telephone: 858.597.6000 Facsimile: 858.597.6008 WARGO & FRENCH LLP MARK L. BLOCK (No. 115457) mblock@wargofrench.com 1888 Century Park East, Suite 1520 Los Angeles, California 90067 Telephone: 310.853.6355 Facsimile: 310.853.6333 Attorneys for Defendants/Counter-Claimants/Appellees/Cross-Appellants Frankie Christian Gaye, Nona Marvisa Gaye (Additional counsel listed on next page) Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 2 of 108 LAW OFFICES OF PAUL N. PHILIPS, APLC PAUL N. PHILIPS (No. 187928) pnp@pnplegal.com 9255 W. Sunset Boulevard, Suite 920 West Hollywood, California 90069-3306 Telephone: 328.813.1126 Facsimile: 310.854.6902 Attorneys for Defendant/Counter-Claimant/Appellee/Cross-Appellant Marvin Gaye III Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 3 of 108 TABLE OF CONTENTS Page PRELIMINARY STATEMENT 1 JURISDICTIONAL STATEMENT (16-55089 AND 16-55626) 7 ISSUES PRESENTED (16-55089 AND 16-55626) 8 STATEMENT OF THE CASE 8 I. II. III. IV. FACTUAL BACKGROUND. 8 A. Marvin Gaye And Got To Give It Up. 8 B. The Lead Sheet. 10 C. Blurred Lines. 11 THE DISTRICT COURT’S SUMMARY JUDGMENT RULING. 13 RULING ON THE LEAD SHEET AND THE SOUND RECORDING. 15 TRIAL TESTIMONY CONCERNING SUBSTANTIAL SIMILARITY OF ELEMENTS REFLECTED IN THE LEAD SHEET 17 A. Judith Finell. 18 1. The Signature Phrase. 18 2. The Hook. 19 3. Theme X. 20 4. The Keyboard Parts. 21 5. The Bass Melody. 21 -i- Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 4 of 108 B. 6. Word Painting. 22 7. Parlando. 23 Ingrid Monson. 24 SUMMARY OF ARGUMENT 25 ARGUMENT 29 I. II. THE SUMMARY JUDGMENT RULING IS NOT APPEALABLE. 29 THE THICKE PARTIES WERE NOT ENTITLED TO SUMMARY JUDGMENT. 34 A. B. C. D. The District Court Considered Only Admissible Evidence Relating To Protectable Elements. 35 Finell’s And Monson’s Opinions Were Based On Protectable Elements That Appear In The Lead Sheet. 37 The District Court Correctly Determined That Conflicting Testimony By Qualified Experts Created Genuine Issues Of Disputed Fact For The Jury. 39 The Gayes’ Copyright Is Not “Thin,” And The Test For Infringement Is Substantial Similarity, Not Virtual Identity. 41 - ii - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 5 of 108 III. THE SCOPE OF THE COPYRIGHT IN “GOT TO GIVE IT UP” SHOULD NOT HAVE BEEN LIMITED TO THE LEAD SHEET DEPOSITED WITH THE COPYRIGHT OFFICE. A. B. C. D. E. F. G. IV. This Is An Important And Timely Issue In The Music Industry. 44 The District Court Mistakenly Believed That Under The 1909 Copyright Act The Content Of A Musical Composition Could Be Established Only With Sheet Music, Not A Phonorecord. 46 The Relevant History And Evolution Of The Copyright Act Do Not Support The District Court’s Narrow Reading Of The Statute. 47 The Purpose Of The Deposit Requirement Is Not To Define The Scope Of The Copyright. 49 The 1997 Amendment Regarding Publication Has No Bearing On The Scope Of The Copyright In A Pre-1978 Music Composition. 52 Relevant Precedent Does Not Limit Studio Composition Copyrights To Musical Notation. 54 The Fundamental Purpose Of The Copyright Laws Is Served By Protecting The Work Of Artists Without Regard To Their Music Literacy. 57 THE THICKE PARTIES ARE NOT ENTITLED TO A NEW TRIAL. A. 43 The Jury’s Verdict And The District Court’s Denial Of The Thicke Parties’ Rule 59 Motion Are Entitled To Substantial Deference. - iii - 58 58 Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 6 of 108 B. C. D. V. 60 1. Instruction 42—Subconscious Copying. 61 2. Instruction 43—Substantial Similarity. 63 The District Court Did Not Abuse Its Discretion In Admitting Expert Testimony. 65 The Jury’s Verdict Is Not Against The Great Weight Of The Evidence. 69 THE AWARD OF ACTUAL DAMAGES, PROFITS, AND A RUNNING ROYALTY WAS PROPER. A. B. C. VI. The Jury Instructions Were Not Erroneous Or Misleading. The Evidence Fully Supports The Award Of Actual Damages. 71 The Award Of A Portion Of The Profits From Blurred Lines Was Reasonable And Is Supported By Substantial Evidence. 75 The Running Royalty Did Not Constitute An Abuse Of Discretion. 77 THE DISTRICT COURT WAS CORRECT IN HOLDING THAT ALL OF THE COUNTERCLAIM DEFENDANTS WERE LIABLE FOR INFRINGEMENT. A. 70 Anyone Who Distributes An Infringing Work Is Jointly And Severally Liable For Actual Damages And Severally Liable For Unlawful Profits. - iv - 78 78 Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 7 of 108 B. C. Harris And The Interscope Parties Were Part Of The Chain Of Distribution For “Blurred Lines” And Therefore Liable For Infringement As A Matter Of Law. 79 The District Court Correctly Relied On ElHakem And Westinghouse To Correct The Verdict. 79 VII. THE DISTRICT COURT’S ORDER DENYING ATTORNEYS’ FEES SHOULD BE REMANDED AND THE GAYES SHOULD BE AWARDED THEIR FULL COSTS. CONCLUSION 84 86 -v- Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 8 of 108 TABLE OF AUTHORITIES Page(s) CASES ABKCO Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d 988 (2d Cir. 1983) 62 ABKCO Music, Inc. v. LaVere, 217 F.3d 684 (9th Cir. 2000) 54 Ace v. Aetna Life Ins. Co., 139 F.3d 1241 (9th Cir. 1998) 59 Adobe Sys. Inc. v. Blue Source Grp. Inc., 125 F. Supp. 3d 945 (N.D. Cal. 2015) 78 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) 36 Apple Comput., Inc. v. Microsoft Corp., 35 F.3d 1435 (9th Cir. 1994) 32, 42 Arnstein v. Porter, 154 F.2d 464 (2d Cir. 1946) 34 Banuelos v. Constr. Laborers’ Trust Funds, 382 F.3d 897 (9th Cir. 2004) 30 Berkic v. Crichton, 761 F.2d 1289 (9th Cir. 1985) 32 Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18 (2d Cir. 1996) 74 Bridgeport Music, Inc. v. UMG Recordings, Inc., 585 F.3d 267 (6th Cir. 2009) 56, 57 Brown Bag Software v. Symantec Corp., 960 F.2d 1465 (9th Cir. 1992) 36, 41 - vi - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 9 of 108 Buck v. Jewell-La Salle Realty Co., 283 U.S. 191 (1931) 62 Cavalier v. Random House, Inc., 297 F.3d 815 (9th Cir. 2002) 33 Cellular Accessories for Less, Inc. v. Trinitas LLC, 65 F. Supp. 3d 909 (C.D. Cal. 2014) 35 Country Rd. Music, Inc. v. MP3.com, Inc., 279 F. Supp. 2d 325 (S.D.N.Y. 2003) 73 Cream Records, Inc. v. Jos. Schlitz Brewing Co., 754 F.2d 826 (9th Cir. 1985) 76 Dang v. Cross, 422 F.3d 800 (9th Cir. 2005) 60 Data E. USA, Inc. v. Epyx, Inc., 862 F.2d 204 (9th Cir. 1998) 32 Data Gen. Corp. v. Grumman Sys. Support Corp., 36 F.3d 1147 (1st Cir. 1994) 49, 50 Desrosiers v. Flight Int’l of Fla., Inc., 156 F.3d 952 (9th Cir. 1998) 59 Dream Games of Ariz., Inc. v. PC Onsite, 561 F.3d 983 (9th Cir. 2009) 65 DSPT Int’l, Inc. v. Nahum, 624 F.3d 1213 (9th Cir. 2010) 59, 60 eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) 71 EEOC v. Go Daddy Software, Inc., 581 F.3d 951 (9th Cir. 2009) 60, 83, 84 - vii - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 10 of 108 El-Hakem v. BJY Inc., 262 F. Supp. 2d 1139 (D. Or. 2003), aff’d, 415 F.3d 1068 (9th Cir. 2005) 82 El-Hakem v. BJY Inc., 415 F.3d 1068 (9th Cir. 2005) 82 Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236 (9th Cir. 2014) 30, 31 Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457 (9th Cir. 2014) (en banc) 65 F.B.T. Prods., LLC v. Aftermath Records, 621 F.3d 958 (9th Cir. 2010) 30 Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) 84 Frank Music Corp. v. MGM, Inc., 772 F.2d 505 (9th Cir. 1985) Fred Fisher, Inc. v. Dillingham, 298 F. 145 (S.D.N.Y. 1924) 76, 78 61 Funky Films, Inc. v. Time Warner Entm’t Co., 462 F.3d 1072 (9th Cir. 2006) Goldstein v Cal., 412 U.S. 546 (1973) 41, 69, 70 47 Harper House, Inc. v. Thomas Nelson, Inc., 889 F.2d 197 (9th Cir. 1989) 63, 64 Hemmings v. Tidyman’s Inc., 285 F.3d 1174 (9th Cir. 2002) 71 Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738 (9th Cir. 1971) 61 - viii - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 11 of 108 Hunter v. Cty. of Sacramento, 652 F.3d 1225 (9th Cir. 2011) 60 Int’l Longshoremen’s & Warehousemen’s Union v. Hawaiian Pineapple Co., 226 F.2d 875 (9th Cir. 1955) Johnson v. Jones, 515 U.S. 304 (1995) 81, 82 31 Kirtsaeng v. John Wiley & Sons, Inc., 136 S. Ct. 1979 (2016) 6, 8, 29, 84, 85 KnowledgePlex v. Placebase, Inc., No. C 08-4267, 2008 U.S. Dist. LEXIS 103915 (N.D. Cal. Dec. 17, 2008) 51 Kode v. Carlson, 596 F.3d 608 (9th Cir. 2010) 59 Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042 (9th Cir. 1994) 32, 36 La Cienega Music Co. v. ZZ Top, 53 F.3d 950 (9th Cir. 1995) 53 Ladd v. Law & Tech. Press, 762 F.2d 809 (9th Cir. 1985) 49 Landsberg v. Scrabble Crossword Game Players, Inc., 736 F.2d 485 (9th Cir. 1984) 43 Litchfield v. Spielberg, 736 F.2d 1352 (9th Cir. 1984) 32 Locricchio v. Legal Servs. Corp., 833 F.2d 1352 (9th Cir. 1987) 29 - ix - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 12 of 108 Lum v. City & Cnty. of Honolulu, 963 F.2d 1167 (9th Cir. 1992) 29 Mattel, Inc. v. MGA Entm’t, Inc., 616 F.3d 904 (9th Cir. 2010) 42 McCulloch v. Albert E. Price, Inc., 823 F.2d 316 (9th Cir. 1987) 43 Molski v. M.J. Cable, Inc., 481 F.3d 724 (9th Cir. 2007) 60 Narell v. Freeman, 872 F.2d 907, 911 (9th Cir. 1989) 41 Nat’l Conference of Bar Exam’rs v. Multistate Legal Studies, Inc., 692 F.2d 478 (7th Cir. 1982) 50 Nicholls v. Tufenkian Import/Export Ventures, Inc., 367 F. Supp. 2d 514 (S.D.N.Y. 2005) 50 Nitco Holding Corp. v. Boujikian, 491 F.3d 1086 (9th Cir. 2007) 59 Oracle Corp. v. SAP AG, 765 F.3d 1081 (9th Cir. 2014) 74, 75 Ortiz v. Jordan, 562 U.S. 180 (2011) 30, 31, 33 Range Road Music, Inc. v. E. Coast Foods, Inc., 668 F.3d 1148 (9th Cir. 2012) 35, 63 Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010) 51,55 Reeves v. Teuscher, 881 F.2d 1495 (9th Cir. 1989) 83 -x- Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 13 of 108 Reno-Tahoe Specialty, Inc. v. Mungchi, Inc., No. 2:12-cv-01051-GMN-VCF, 2014 U.S. Dist. LEXIS 177168 (D. Nev. Dec. 19, 2014) 78, 79 Rice v. Fox Broad. Co., 330 F.3d 1170, 1180 (9th Cir. 2003) 41 Rosette v Rainbo Record Mfg. Corp., 546 F.2d 461 (2d Cir. 1976) 53 Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003) 42 Scentsy, Inc. v. B.R. Chase, LLC, 942 F. Supp. 2d 1045 (D. Idaho 2013), aff’d in part & rev’d in part on other grounds sub nom. Scentsy, Inc. v. Harmony Brands, LLC, 585 F. App’x 621 (9th Cir. 2014) SEIU v. Nat’l Union of Healthcare Workers, 718 F.3d 1036 (9th Cir. 2013) Shaw v. Lindheim, 919 F.2d 1353 (9th Cir. 1990) 50, 51 60 33, 70 Shum v. Intel Corp., 629 F.3d 1360 (Fed. Cir. 2010) 86 Skidmore v. Led Zepellin, No. CV 15-3462 RGK (AGRx), 2016 U.S. Dist. LEXIS 51006 (C.D. Cal. Apr. 8, 2016) 46 Slane v. Mariah Boats, Inc., 164 F.3d 1065 (7th Cir. 1999) 86 Smith v. Jackson, 84 F.3d 1213 (9th Cir. 1996) 31, 32, 36 - xi - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 14 of 108 Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984) Swirsky v. Carey, 376 F.3d 841 (9th Cir. 2004) 78 passim Sygma Photo News, Inc. v. High Soc’y Magazine, Inc., 778 F.2d 89 (2d Cir. 1985) 78 Sylvestre v. Oswald, No. 91 Civ. 5060, 1993 U.S. Dist. LEXIS 7002 (S.D.N.Y. May 18, 1993) 51 Three Boys Music Corp. v. Bolton, 212 F.3d 477 (9th Cir. 2000) passim Twentieth Century-Fox Film Corp. v. Dunnahoo, 637 F.2d 1338 (9th Cir. 1981) 46 Twentieth Century-Fox Film Corp. v. MCA, Inc., 715 F.2d 1327 (9th Cir. 1983) 33 Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292 (Fed. Cir. 2011) United States ex rel Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 968 (9th Cir. 1999) United States v. Hinkson, 585 F.3d 1247 (9th Cir. 2009) (en banc) 74, 75 85 59, 65 United States v. Kaur, 382 F.3d 1155 (9th Cir. 2004) 60 United States v. Vallejo, 237 F.3d 1008 (9th Cir. 2001) 60 Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 (2006) 59 - xii - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 15 of 108 Vaughan v. Ricketts, 950 F.2d 1464 (9th Cir. 1991) Wall Data Inc. v. L.A. Cty. Sheriff’s Dep’t, 447 F.3d 769 (9th Cir. 2006) Washingtonian Publ’g Co. v. Pearson, 306 U.S. 30 (1939) 81 60, 65 51 Westinghouse Elec. Corp. v. Gen. Circuit Breaker & Elec. Supply, Inc., 106 F.3d 894 (9th Cir. 1997) 80, 82, 83 White-Smith Music Publ’g Co. v. Apollo Co., 209 U.S. 1 (1908) 47, 48, 58 Wilson Arlington Co. v. Prudential Ins. Co. of Am., 912 F.2d 366 (9th Cir. 1990) 30 Xoom, Inc. v. Imageline, Inc., 93 F. Supp. 2d 688 (E.D. Va. 1999) aff’d in part & rev’d in part on other grounds, 323 F.3d 279 (4th Cir. 2003) 50 Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020 (9th Cir. 2003) 81, 82 STATUTES, RULES AND REGULATIONS 17 U.S.C. §§101 et seq. §303(b) §407(a)(1) §407(a)(2) §408 §408(b) §501(a) §504(b) §505 7 52 49 49 50 49 78 76 8, 84 - xiii - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 16 of 108 28 U.S.C. §1291 §1331 7 7 24 Fed. Reg. 4955 (June 18, 1959) 44 COPYRIGHT ACT OF 1831,, 4 Stat. 436 (1831) (REPEALED 1909) 47 COPYRIGHT ACT OF 1909, 35 STAT. 1075 (1909) (REPEALED 1978) §1(e) §12 48, 52, 54, 57, 58 48 48 FED. R. APP. P. 29(a)(4)(D)-(E) 6 FED. R. CIV. P. 50 50(a) 50(b) 54 54(d)(1) 59 5, 25, 34, 58 25 25 86 85 59 OTHER AUTHORITIES HARVARD CONCISE DICTIONARY OF MUSIC (4th ed. 1999) 10, 22 ALAN LATMAN, HOWELL’S COPYRIGHT LAW 129 (4th ed. 1962) 61 2 NIMMER ON COPYRIGHT §7.17[A] (2016) 49 - xiv - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 17 of 108 PRELIMINARY STATEMENT In 1976, Motown legend Marvin Gaye composed and recorded in studio his #1 dance and funk hit “Got To Give It Up” (“Give”). ER2238. The song, dubbed by Oprah Winfrey the greatest dance song ever, has endured for the forty years since it was created. SER856. In early 2013, Pharrell Williams and Robin Thicke discussed writing a new song. See SER856, SER858. In multiple public statements they were candid about the fact that Give and Marvin Gaye were at the top of their minds in creating their song “Blurred Lines” (“Blurred”). See, e.g., ER398-02, ER408-15, ER1446447; SER76, SER820, SER856, SER858, SER917. In one statement, Thicke recounted that he said: “Pharrell and I were in the studio and I told him that one of my favorite songs of all time was Marvin Gaye’s ‘Got To Give It Up.’ I was like ‘Damn, we should make something like that, something with that groove.’… we literally wrote the song in about a half hour.” ER16-17. Williams said that, in writing Blurred, he “tried to take the feeling that ‘Got To Give It Up’ gave him to create ‘Blurred Lines’” and that he “imagined I was Marvin Gaye when I created ‘Blurred Lines.’” ER233-34, ER398-02, ER408-15, ER1446-47; SER820, SER917. The striking and substantial similarities between Give and Blurred did not go unnoticed. One of the first to see it was Harry -1- Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 18 of 108 Weinger, a Vice President of Universal Music Enterprises, a subsidiary of Appellant UMG Recordings. ER519-20. Mr. Weinger emailed that Blurred was “utterly based” on and “sampled/borrowed” from Give. ER520-21; SER918, SER922; see ER526, ER543-44. Numerous articles and blogs commented on the similarities, some also going so far as to state that Blurred “sampled” (i.e., digitally copied) Give. SER292-96. Not surprisingly, the Gayes1 also noticed that Blurred “sounded just like Dad’s ‘Got to Give it Up.” ER304. They initially assumed that the composers of Blurred had licensed the rights to Give; when they learned otherwise they reached out to Thicke and Williams. ER304-307. In response, Thicke and Williams (along with their fellow Blurred performer Clifford Harris, Jr.) sued the Gayes for a declaration of non-infringement. ER2288. The Gayes did not start the litigation, but they did not yield either in their determination to protect the work of Marvin Gaye. They timely counterclaimed for copyright infringement. ER2206, ER2224.2 1 Appellees and Cross-Appellants are Marvin Gaye’s three children: Frankie Christian Gaye, Nona Marvisa Gaye and Marvin Gaye III. They own the relevant copyright in Give (ER300-02) and are referred to herein in as the Gayes. 2 Except where necessary to distinguish among them, the counterclaim defendants are referred to herein as the Thicke Parties (which was also the terminology used by the District Court). They include Messrs. Thicke, Williams and Harris, as well as entities (continued . . . ) -2- Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 19 of 108 Faced with copyright litigation, Thicke and Williams pivoted 180 degrees. No longer was Williams imagining he was Marvin Gaye in the studio while creating Blurred, or did Thicke advise Williams to recreate Give. See ER398-02, ER408-15, ER1446-47; SER76, SER820, SER858, SER917. Instead, Williams denied that Give or Marvin Gaye “ever crossed my mind” in the one hour it took him to write Blurred. SER926, but see SER292-96. Thicke listed as a co- composer in filings with the Copyright Office denied having any part in the writing of Blurred and both Thicke and Williams denied ever discussing Give. ER305-06; see also SER584, SER590, SER926, SER1011-12. If this record of inconsistencies left any doubt that Thicke and Williams could not be trusted, Thicke actually answered “no” to the question of whether he “considered [himself] an honest person.” ER396. With this as backdrop, the District Court carefully followed this Court’s precedents for determining substantial similarity in a music copyright case. In a detailed order denying the Thicke Parties’ motion for summary judgment, the District Court considered expert ( . . . continued) involved in the publication and distribution of Blurred: More Water from Nazareth Publishing, Inc., UMG Recordings, Inc., Universal Music Distribution, Star Trak Entertainment, and Interscope Records. ER2206, 2224. -3- Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 20 of 108 declarations from both sides in determining that a triable issue of fact existed under the extrinsic test. ER110–37. At trial, the Gayes presented substantial evidence of similarity through the testimony of two renowned musicologists. This included testimony that no less than seven major elements of Give were copied in Blurred, and that nearly every one of the 130 bars of Blurred contained at least one element of Give a “constellation” of similarities that the witness found “stunning” and “highly unusual.” ER666, ER581–82. The jury was of course also free to weigh the credibility of the Thicke Parties and their inconsistent and evolving stories. The District Court properly instructed the jury, which found substantial similarity and returned a verdict in favor of the Gayes. ER60–67. Thereafter, the District Court considered voluminous post-trial motions by the Thicke Parties and (other than ordering a remittitur of a portion of the damages award) denied them in a detailed 56-page order. ER4. Indeed, the only errors made by the District Court in the proceedings leading up to judgment favored the Thicke Parties. In particular, the District Court incorrectly limited the scope of the Gayes’ copyright to the lead sheet deposited with the Copyright Office, thereby precluding the Gayes from establishing additional similarities between Give and Blurred, and requiring the jury to -4- Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 21 of 108 make its determinations without ever hearing the entirety of Marvin Gaye’s original recording of Give. See generally ER100. The Thicke Parties’ appeal in this case is premised on a fundamental misapprehension: that the District Court’s summary judgment ruling is reviewable. It is not. It is superseded by the trial record. And because the Thicke Parties failed to make a motion for judgment as a matter of law under Federal Rule of Civil Procedure 50 at trial, this Court cannot reverse the judgment based on any purported inadequacy in the evidence. Instead, the Thicke Parties are relegated to meeting the heavy burden of showing that the District Court abused its discretion in denying their motion for a new trial. In so doing, the Thicke Parties offer a “sky is falling” argument based on selected post-verdict press clippings suggesting that the verdict could chill “the process by which later artists draw inspiration from earlier artists.”3 Opening Brief at 1. Even putting 3 In support of this argument, the Thicke Parties cite five postverdict news articles (Opening Brief at 1 n.1), none of which is in the record, and notwithstanding the fact that they successfully moved in limine below to exclude third-party news articles supporting the Gaye family, including a recorded interview of Smokey Robinson. See ER107. The amicus brief filed in support of the Thicke Parties by 212 individuals largely repeats this “sky is falling” argument, while advancing a theory long since rejected by all courts that a composition can only infringe if it has an identical (or nearly so) (continued . . . ) -5- Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 22 of 108 aside the fact that the Thicke Parties’ most recent testimony is that inspiration from Marvin Gaye never entered their minds, this is a single case based on a very specific and very well-developed record that amply established that one particular song, infringed one particular copyright. This case stands for no more and no less than the fact that the original work of an artist may not be appropriated without consent and fair compensation. The Gayes also cross-appeal on limited issues. The District Court denied the Gayes an award of attorneys’ fees. ER138. However, after the District Court ruled, the Supreme Court revised the standard for awards of fees in copyright cases. See Kirtsaeng v. John Wiley & Sons, Inc., 136 S. Ct. 1979 (2016). The fee order should be ( . . . continued) melody. App. Dkt. 22 at 7-8. The amicus brief strays far outside the record, makes unsupported generalization about the music at issue, and is apparently uninformed by the actual trial testimony, including the fact that Williams and Thicke disavowed the idea that they wished to create an “homage” to Marvin Gaye. It also bears mentioning that of the 212 signatories to that brief, several are not “songwriters, composers, musicians, [or] producers” at all, but rather music business executives such as talent managers, attorneys, and other representatives. In addition, more than half (by our count, based on public information) are either clients of the Thicke Parties’ trial counsel, have recorded or are credited on albums with Williams, or have another business relationship with one or more of the Thicke Parties. This web of connections is not disclosed in the amici’s statement of interest. See id. at 1; cf. Fed. R. App. Proc. 29(a)(4)(D)(E). -6- Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 23 of 108 remanded for reconsideration in light of the new standard. The District Court also erred in limiting the Gayes’ award of costs. Finally, if the matter is remanded for a new trial (which the Gayes do not urge and believe is not appropriate), the Court should make clear that Marvin Gaye’s recorded composition of Give is admissible and may be used to establish the scope of the work. JURISDICTIONAL STATEMENT (16-55089 AND 16-55626) The District Court had jurisdiction under 28 U.S.C. §1331 and 17 U.S.C. §§101 et seq. This Court has jurisdiction with respect to the notices of appeals filed by the Gayes (Nos. 16-55089 and 16-55626), which have been consolidated with the primary appeal (No. 1556880). The Gayes timely filed their notice of cross-appeal resulting in Case No. 16-55089 on December 31, 2015. SER1. This is an appeal from the final judgment entered on December 2, 2015, including the denial of full costs to the Gayes. ER1. The Gayes timely filed their notice of appeal resulting in Case No. 16-55626 on April 27, 2016. SER15. This is an appeal from the April 12, 2016 post-judgment order regarding fees. ER138. The Court has jurisdiction over both appeals under 28 U.S.C. Section 1291. -7- Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 24 of 108 ISSUES PRESENTED (16-55089 AND 16-55626) With respect to the cross-appeals, the following issues are presented: 1. Should the order denying the Gayes attorneys’ fees under 17 U.S.C. §505 be remanded for reconsideration under the Supreme Court’s intervening decision in Kirtsaeng v. John Wiley & Sons, Inc.? 2. Should the Gayes, who were the prevailing party on all claims in the Thicke Parties’ complaint and who were the prevailing party on the primary claim asserted in the counterclaim, be permitted to recover their full taxable costs? 3. In the event this matter is remanded for a new trial, should proof of the scope of the Gayes’ copyright be confined to the lead sheet deposited with the Copyright Office? STATEMENT OF THE CASE I. FACTUAL BACKGROUND. A. Marvin Gaye And Got To Give It Up. Marvin Gaye was an iconic Motown recording artist dubbed the “Prince of Soul.” Gaye helped shape the sound of Motown in the 1960s and 1970s with songs like “Ain’t That Peculiar,” “How Sweet It Is (To Be Loved By You),” “I Heard It Through the Grapevine,” -8- Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 25 of 108 “What’s Going On,” and “Let’s Get It On.” Gaye’s storied career was brought to a tragic end when he was murdered by his father in 1984. Gaye was posthumously inducted into the Rock and Roll Hall of Fame in 1987, the Rhythm and Blues Music Hall of Fame in 2014, and the Songwriters Hall of Fame in 2016. Gaye had three albums included on Billboard’s list of top 100 albums of all time and four songs on Billboard’s list of 500 greatest songs of all time. Gaye was also honored with a Grammy Lifetime Achievement Award. Gaye composed and recorded Give over a period of four days in December 1976. Gaye did not read or write music fluently and did not compose using standard musical notation. SER472. He created the work in his studio by singing and playing instruments and recording the resulting sounds. Gaye sang lead and background vocals; he also played the percussion, synthesizer bass, and keyboard parts. Once he was satisfied with the recorded version of the song, the composition was complete. See generally ER299-58. Give was released in March, 1977 on Live at the London Palladium, which reached number one on the Billboard Soul Albums chart and number three on the Pop Albums chart. ER2238. The Give single reached number one on three charts, including the US Billboard Hot 100. ER2238. Give also made the top ten in the UK. Gaye typically -9- Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 26 of 108 used the song to open his live performances. It became one of the best loved dance songs of all time. It remains popular, is still frequently performed, and generates royalties to this day. See, e.g., ER2468. B. The Lead Sheet. Gaye never wrote sheet music for Give. See SER472. The lead sheet was created from the recording by someone unknown to the Gayes on behalf of Gaye’s publisher, which filed the lead sheet with the U.S. Copyright Office. See id. Music notation ranges in complexity and detail. A lead sheet, which is at issue in this action, since it was the notation filed as the deposit copy with the U.S. Copyright Office, is typically “a shorthand score or part. It may provide melody and chord symbols . . . along with accompanimental figures and/or lyrics.” DICTIONARY OF HARVARD CONCISE MUSIC 459 (4th ed. 2003). While a lead sheet may appear somewhat spare, it will typically convey a considerable amount of information to a skilled performer, particularly one who is aware of the conventions and expectations associated with the musical genre. See id. 413 (discussing interpretation), ER816, ER546. - 10 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 27 of 108 The expert witnesses for both the Gayes and the Thicke Parties offered consistent testimony regarding the purpose and use of lead sheets. For the Gayes, Judith Finell explained that a skilled musician would know what to play based on various indicia in the lead sheet, as well as the style of the music. ER816. Sandy Wilbur, the Thicke Parties’ expert testified that a lead sheet was a “less fleshed-out version” of sheet music (ER1136), and admitted that when she created a transcript from the sound recording of Give it was “substantially the same as the copyright deposits.” ER1141. C. Blurred Lines. The Thicke Parties released the single version of Blurred in March 2013 and the album in July 2013. ER2239. Before the litigation, Thicke and Williams freely admitted they were attempting to recreate Give in Blurred, to the point that Williams said he was “trying to pretend [he] was Marvin Gaye.” ER1446–47, SER820, SER917.4 ER234, ER398–02, ER408–15, Others in the public believed that 4 Thicke made many similar statements in video and radio interviews, e.g., telling an interviewer that Give is “one of my favorite songs of all time, I went in [to the studio] and [said] ‘you know Pharrell I’d love to make something like this, you know feel like ‘Got to Give it Up’ and [Pharrell] started with the percussion you know trying to get that rhythm and then the song actually happened we did the whole record in about an hour.” SER76, SER859. - 11 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 28 of 108 Blurred was a remake or sampling of Give, and an executive at Universal Music Enterprises, a subsidiary of Appellant UMG Recordings, went so far as to admit that Blurred was “utterly based” on Give. ER520–21. He hypothesized that Blurred was “sampled/borrowed” from Give (SER922) and opined that the Gayes were entitled to 100% of the royalties generated by Blurred. ER355. The Gayes, initially delighted that Blurred “was breathing new life” into Give, assumed it had been licensed “because there were too many similarities and the songs sounded so much alike.” ER304–05; see also ER336–37. When they learned otherwise and reached out to the Thicke Parties, they were rewarded with this lawsuit. ER305-07, ER2288. Thicke and Williams’ story changed completely at their depositions and at trial, where Williams testified that he created the music for Blurred without any input from Thicke and that Give never entered his mind.5 ER1428; see also SER584, SER590, 5 In yet a third story, Thicke stated in a sworn and verified interrogatory response that he told Williams he “would love to create a song that evoked the musical era of” Give. Following his deposition testimony, in which he stated that he did not give Williams any direction or tell him what to “evoke,” he withdrew the response and submitted supplementary responses contradicting his earlier sworn statements. See ER145, ER242, ER402, ER408-15; SER823, SER849, SER858, SER1011-12. - 12 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 29 of 108 SER926. Thicke testified that he made all of his statements while drunk or on drugs, none of them were true, and he mentioned Marvin Gaye only to sell records. ER391, ER393, ER396–97. Thicke admitted he was not an honest person, and he was defiant and dismissive of the entire lawsuit. ER396–87. Williams, for his part, was evasive and condescending in his testimony; for instance, in an excerpt of his deposition played to the jury, he repeatedly responded with the statement “I’m not comfortable” and refused to answer even the most basic questions about possible similarities in transcription between the songs. ER464; SER584, SER590, SER923-30. II. THE DISTRICT COURT’S SUMMARY JUDGMENT RULING. The Thicke Parties filed a motion for summary judgment on July 22, 2014, even before fact discovery had concluded in the case and before experts reports were due. SER42. The Thicke Parties relied on a declaration from their expert, Sandy Wilbur. See id. The Gayes, for their part, submitted detailed declarations from two musicologists, Judith Finell and Ingrid Monson. SER82-195. Both are highly respected and experienced, and no challenge was ever made to their qualifications. Ms. Finell has a Bachelor of Arts degree in piano performance from the University of California, Los Angeles, - 13 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 30 of 108 and a Master of Arts degree in musicology from the University of California, Berkeley, as well 25 years’ experience in the field of analyzing music. SER144-49. Dr. Ingrid Monson received a Bachelor of Arts degree in economics from the University of Wisconsin, a Bachelor of Music degree in jazz trumpet performance from the New England Conservatory of Music, a Master of Arts degree in musicology from New York University and a Doctor of Philosophy degree in musicology from New York University. SER186-195. She is the Quincy Jones Professor of African American Music at Harvard University, and has served as Interim Dean of Arts and Humanities and Chair of the Department of Music at Harvard. SER186. Finell and Monson provided detailed analyses of both songs, identifying numerous points of similarity, and explaining that the similar elements were not generic or dictated by genre. See generally SER82-195. In a detailed 28-page ruling, the District Court agreed with the Thicke Parties that, for purposes of the motion, certain similarities could not be considered because they were found in the commercial sound recording but not the lead sheet, but held that the remaining similarities presented a triable issue of fact regarding substantial similarity. ER110. - 14 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 31 of 108 III. RULING ON THE LEAD SHEET AND THE SOUND RECORDING. At the January 26, 2015, pretrial conference, the District Court ruled that the Gayes could not use the commercial recording of Give at trial because the recording contained elements not found in the lead sheet. See, e.g., SER350. The District Court’s order entered thereafter stated that because there was no earlier published sheet music for Give in the record, the only elements of the song protected by copyright were those reflected in the lead sheet. See generally ER100. However, recognizing that the jury could not apply the intrinsic prong of the substantial similarity test without listening to a sound recording, the District Court permitted the Gayes to play edited recordings from which all elements the District Court had determined were unprotected had been eliminated. See generally ER100-05.6 The Gayes submitted the edited recordings as well as a declaration from Judith Finell, one of their musicologists, containing many of the same opinions she later presented at trial. SER474-81. Finell’s edited recordings omitted many significant elements found in the recorded 6 The Thicke Parties were also permitted to present a recording they had created, purportedly on the basis of the lead sheet. ER1048-49. The Gayes argued that this recording was unrecognizable, a “Frankenstein-like monster” created for the litigation (ER1603), and the jury was of course free to disregard it. - 15 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 32 of 108 composition (most of which were also copied by the Thicke Parties). SER466. These included the percussion (cowbells, drums, hi-hat, hand-claps, and tom-tom), backup vocals (including a “woo” vocal fingerprint and a “doo wop” section), and party noises/chatter (including repeated use of the word “hey”). SER466-67. At the February 20 pretrial conference, the District Court ruled Finell’s declaration sufficiently demonstrated that the edited sound recordings only contained elements reflected in the lead sheet, and any disputes over what elements appeared in the lead sheet were a matter for crossexamination. ER1743–47. The Thicke Parties objected to Finell’s opinions regarding what elements were in the lead sheet and filed a Daubert motion to exclude her testimony. SER490. The District Court reviewed Finell’s testimony and evaluated her reliability on multiple occasions. See, e.g., ER110, ER1739. During the February 20 pretrial conference, the District Court stated it had read and understood the arguments and Finell’s declaration. ER1745. It concluded her opinions about the lead sheet were reliably “based on her experience and expertise in how to evaluate the sheet music” and that the Thicke Parties’ concerns could be addressed through crossexamination at trial. ER1745. - 16 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 33 of 108 IV. TRIAL TESTIMONY CONCERNING SUBSTANTIAL SIMILARITY OF ELEMENTS REFLECTED IN THE LEAD SHEET At trial, the jury heard evidence (discussed above) of statements from Williams and Thicke that evidenced direct copying, as well as the admission from an executive of one of the Thicke Parties that Blurred was “utterly based” on and “borrowed/sampled” from Give. See ER520-21, ER526, ER543-44, SER782, SER784, SER844. In addition, the Thicke Parties’ musicologist and Williams agreed that some parts of the two songs, as played at trial, were similar. ER1256, ER1436–38. For their part, the Gayes presented extensive musicology testimony from both Finell and Monson. See generally ER468-96, ER545-683, ER698-784, ER790-903. Finell testified that each of the points of similarity she identified was found in the lead sheet (ER495, ER586, ER598, ER607–08, ER618, ER627–28, ER634– 35, ER648–49, ER658, ER792–94, ER817–18, ER826–27), and Monson countered any suggestion that the similarities were a function of genre. ER854-61.7 7 Wilbur admitted that in order to create a recording based on the lead sheet, it was necessary to extrapolate and add parts (including piano music and rhythms) that were not literally reflected in the lead sheet but were reasonably implied. ER1047-48. She conceded that the recording was based on her “interpretation of the lead sheet” and reflected musical “choice[s.]” ER1209-10; see also ER1211-24. As the trial court aptly said, “what this distills to is, that the parties (continued . . . ) - 17 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 34 of 108 A. Judith Finell. Finell testified that nearly every one of the 130 bars of Blurred contains at least one of the elements of Give that appears in the lead sheet. ER666. The numerous common elements and the way they interrelated with each other created a “constellation” of similarities she found “stunning” and “highly unusual.” ER581–82. For example, the “heartbeat” of the song—the interlocking bass and keyboard—“drove each song.” ER559. She identified seven elements found in both Blurred and the lead sheet: the signature phrase, the hook, “Theme X,” the bass melody, the keyboard rhythms and chords, word painting, and the parlando/rap section. 1. The Signature Phrase. Finell’s testimony regarding the signature phrase is largely undisputed, except for the fact that the final note of this ten-note sequence lasts for a beat and a half in the lead sheet and only half a beat in the edited sound recording and in Finell’s and Wilbur’s transcriptions. ER734–35. Finell described this as a minor difference in notation, explaining that the lead sheet reflects the signature phrase musically and is an accurate representation of the ( . . . continued) disagree as to what the deposit copy reveals as to musical elements.” ER939. - 18 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 35 of 108 notes in the composition, as no other notes fall after the phrase to interfere with the last note, regardless of how long it is held. ER735–37. Finell further explained that the rhythms and pitches are all represented accurately in the lead sheet. ER826–27. Finell described the ten-note signature phrase in Gaye’s song as the first vocal phrase, using the lyrics “I used to go out to parties,” and the signature phrase in Blurred as using the lyrics “ and I’m gon’ to take a good girl.” ER566–67. Finell identified four similar features in these phrases: (a) beginning with three repeated pitches; (b) a sequence of six near-identical scale degrees (5-6-1-2-1-5 and 5-61-1-1-5, respectively); (c) six identical rhythms for the first six tones; and (d) ending with a melisma beginning with the scale degrees 1-5. ER567–71; SER128. 2. The Hook. The hook is the “most well-known or memorable theme of a song” or the “identifying phrase of the song.” ER586-98. In Give the hook consists of the melody and lyrics associated with the phrase “keep on dancin’”; in Blurred the hooks are the melodies and lyrics associated with the words “take a good girl” and “I hate these blurred lines.” ER599. Finell testified that the hook for Give appears in the lead sheet and that the pitches and rhythmic placement of the hooks in - 19 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 36 of 108 the two songs are similar. ER599-01. “[O]ut of the four notes from the Give hook and four notes from Blurred, three are identical in their scale degrees.” ER600-01. The hook of Give repeats 12 times within the lead sheet and the hook in Blurred repeats 14 times. ER602. The four-note hook melody in Give contains scale degrees 61-2-1; the four-note hook melody in Blurred contains scale degrees 61-1-1. SER868-70. Finell also testified that the rhythmic placement is similar in that two of the notes are before and two are after the bar lines in each song. ER600-01. 3. Theme X. Finell testified that Theme X in Give is the backup hook setting the lyrics “Dancin’ Lady,” which is also the verse theme used repeatedly throughout Blurred. SER487. It is represented in a varied version in the deposit copy of Give (Part 2). ER607–08, ER618. Theme X in the recording of Give (Part 1) consists of four notes, scale degrees 3-3-#2-3, setting the lyrics “Dancin’ Lady,” in a stepwise static-static-down-up series. ER609–10, ER614–15, ER619– 20, ER774–75. The linked melody in Part 2 of the deposit copy also contains four notes, scale degrees 5-5-6-5, and is set to these same lyrics (mistakenly transcribed in the lead sheet as “Fancy Lady”), in a stepwise static-static-up-down series. - 20 - ER609–10, ER772–74, Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 37 of 108 ER776–77; SER487. Finell referred to this deposit copy variant as a modified “mirror” inversion of Theme X as it is found in the recording of Give (Part 1). ER614–15, ER755. Finell also testified that the notation includes both the 5-5-6-5 melody and an A7 chord together, which suggests a harmonized vocal. ER777, ER780, ER782–83. 4. The Keyboard Parts. Finell testified that in Give the bass melody notation together with the chord names in the lead sheet indicate the song’s keyboard part. ER495, ER648, ER792–93, ER817–18. Rhythms of the right hand chords are dictated by rhythms in the bass melody and the offbeat vocal entrances. ER495, ER792. The chord designations such as A7 above the bass line indicate that a chordal instrument such as keyboard or guitar would be an appropriate instrument. ER799–800. The “bass simile” notation indicates the keyboard part should run through the entire composition. ER549. The keyboard chord pitches and rhythms are significantly similar between the works. ER494, ER559, ER647-48. 5. The Bass Melody. Finell testified that the bass melody is reflected in the lead sheet. ER627–28, ER634–35. She noted that the lead sheet has a descent - 21 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 38 of 108 from the 4th scale degree to the 1st scale degree, whereas the edited sound recording included a descent from the 5th scale degree to the 1st scale degree, but she did not consider this difference to be significant because the edited recording and the lead sheet reflect the same descending gesture. ER807–08. The bass melodies in Give and Blurred are significantly similar, with similar pitches, rhythms and a distinctive leap, as well as a similar descending passage, and run throughout Blurred. ER630-37, ER641. Finell described the interlocking keyboard and bass melody running through both songs as “a heartbeat… a pulse that runs through the song and drives each song.” ER559. 6. Word Painting. Finell described word painting as using musical elements to illustrate certain lyrics. See ER648–49. For example, if a song is singing about going higher, the notes also go higher in pitch. Id.; see also HARVARD CONCISE DICTIONARY OF MUSIC 972 (4th ed. 2003) (“Word painting” is “[t]he musical illustration of the meaning of words in vocal music”). Finell testified that the word painting in Give was found in the lyrics “move it up, . . . turn it ‘round, ooh, shake it down,” and the corresponding music (which appear in the lead sheet), and the word - 22 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 39 of 108 painting in Blurred was found in the lyrics “shake it ‘round, get down, get up” and the corresponding music. ER651-52. She described how the lyrics “up,” “round,” “shake,” and “down” were depicted musically in a very similar fashion in both songs, such as the lyric “down” ending on the downbeat on scale degree 1 in both, and a melodic ascent by a step to the lyric “up” in both. ER651–52. Additionally, three out of the four scale degrees in Blurred are found in Give in these passages: 1, flat-7, and 3. SER1119. Structurally, and not coincidentally, the word painting passages serve as bookends to the parlando/rap sections in both songs. ER650–52. 7. Parlando. The parlando is a section that “deviates” from the rest of the composition in that “the music changes from melodic music to chanted music, some of which is just sung in a monotone, almost in a spoken way.” ER657. Finell testified that the parlando section of Give appears in the lead sheet. ER658. The parlando section in Give and the rap section in Blurred have pronounced structural similarities: they begin and end at the exact same bar (73 through 88) and have substantially similar bridges before and after. ER652, ER657–61. - 23 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 40 of 108 B. Ingrid Monson. Monson, the former chair of the Music Department at Harvard University and an expert on jazz, African American music, and music of the African diaspora, testified on other key musicological issues. She explained that the similarities between Give and Blurred are not dictated by genre. ER854-61. elements that were copied. Rather, Give contains original ER846, ER854-61. The particular combination of bass lines and an offbeat harmonic rhythm in Give was unusual and, indeed, Monson testified that she could not identify a single song other than Blurred that reproduced these groundbreaking elements of Give. ER846, ER861-64. Monson also prepared recordings demonstrated the (known as deep “mash ups”) structural similarities that musically between the compositions and that were heard by the jury. ER864-69; SER90416.8 8 In an attack on this testimony, ten musicologists have filed a brief that purports to start the analysis from scratch, with a very crabbed interpretation of the lead sheet and assertions unconstrained by the record or tested by any form of crossexamination. App. Dkt. 20. To the extent it merits any consideration, this amicus brief at most shows that experts may disagree regarding substantial similarity, creating a triable issue of fact. - 24 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 41 of 108 SUMMARY OF ARGUMENT Because the Thicke Parties failed to move for judgment as a matter of law under Rule 50(a) before the case was submitted to the jury, they waived their right to file a Rule 50(b) motion for judgment as a matter of law after an adverse judgment.9 On appeal they limited themselves to: (1) attempting to appeal the District Court’s denial of their motion for summary judgment and (2) seeking a new trial based on allegedly erroneous jury instructions, evidentiary errors, and the weight of the evidence. The attempt to resurrect their summary judgment motion fails for two reasons. First, a denial of summary judgment is not appealable where the case is ultimately decided by a jury. In the ordinary case, as here, the trial record supersedes the summary judgment factual record, and the reviewing court will not turn back the clock to address the summary judgment ruling. Part I, infra. Second, even if appealable, the decision was correct. Assuming arguendo that the District Court properly limited proof of the scope of the Gayes’ copyright to the lead sheet, the District Court carefully 9 At trial, the Thicke Parties failed to make any motion under Rule 50(a) at the close of evidence or even express any intention to do so. ER8. As a result, the District Court found their purported Rule 50(b) motion waived. ER7-9. On appeal, the Thicke Parties have abandoned their Rule 50 argument and with it any claim that the evidence was legally insufficient to support the verdict. - 25 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 42 of 108 reviewed the parties’ expert opinions, filtered out anything not protectable, and correctly found there was ample admissible evidence in the record from which a rational jury could find substantial similarity under the extrinsic test. Part II, infra. If this Court disagrees with the lead sheet limitation imposed by the District Court, it eliminates virtually all of the grounds asserted as error by the Thicke parties and reinforces the correctness of the decision below. Part III, infra. With respect to the Thicke Parties claim that the District Court should have granted them a new trial, the Thicke Parties face a very heavy burden. Part IV(A), infra. The District Court, which was able to observe the witnesses (including listening to music performed in court) carefully considered all of the arguments raised on appeal and rejected the motion for a new trial in a well-reasoned opinion. ER459. The Thicke Parties challenge two jury instructions: number 42, involving subconscious copying, and number 43, explaining this Circuit’s test for substantial similarity. Both instructions correctly state the law, fairly and adequately cover the issues presented, are not misleading (particularly when viewed in the context of the - 26 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 43 of 108 instructions as a whole), and did not prejudice the Thicke Parties. Part IV(B), infra. The Thicke Parties also challenge the District Court’s decision to admit testimony of the Gayes’ musicologists, Judith Finell and Ingrid Monson, claiming they based their opinions on unprotected elements of Give. The District Court, however, properly permitted expert testimony on what was and was not reflected in the lead sheet and limited the testimony consistent with the Thicke Parties’ position that the lead sheet defined the scope of the Gayes’ copyright. While there were disputes over what elements a skilled musician or musicologist would understand from the lead sheet, these presented issues of fact properly resolved by the jury. Part IV(C), infra. The District Court considered whether the jury’s verdict was against the weight of the evidence and concluded it was not. “The Gaye Parties presented sufficient evidence of similar expression, as measured by external, objective criteria, based on which the jury could reasonably have found substantial extrinsic similarity between ‘Got to Give It up’ and ‘Blurred Lines.’” ER28. This conclusion was amply supported in the record. Part IV(D), infra. The Thicke Parties also seek a new trial on remedy issues. The District Court considered all of these arguments, and beyond - 27 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 44 of 108 remitting a portion of the actual damages and profits awards, rejected them. The remaining award of damages and profits is supported by competent evidence, as the District Court found. ER30. Likewise, the ongoing royalty, which the District Court ordered as an alternative to an injunction, was within the District Court’s equitable authority and consistent with the expert testimony concerning royalties presented at trial. Part V, infra. Finally, the District Court’s decision to amend the jury verdicts to impose liability on Harris and the Interscope Parties10 was appropriate. Once the jury found liability for infringement against Thicke and Williams, the other performers, publishers and distributors of the infringing work were liable as matter of law. The District Court concluded that the jury declined to impose liability as a result of failure to give a jury instruction on distributor liability requested by the Gayes. In these circumstances a district court is authorized to correct the verdicts as well as grant declaratory relief against the infringers. Part VI, infra. The Gayes cross-appeal three issues. First, as discussed above, this Court can affirm the judgment on the alternative basis that the 10 The “Interscope Parties” refers to Defendants and Appellants Interscope Records, UMG Recordings, Inc., Universal Music Distribution, and Star Trak Entertainment. - 28 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 45 of 108 sound recording should have been admitted. The Gayes also raise the issue protectively on cross-appeal so that if for any reason the matter is returned to the District Court for a new trial the Gayes will be free to introduce the sound recording and establish similarities based on it. Second, in a post-judgment order the District Court denied the Gayes’ motion for attorneys’ fees. This order should be remanded for reconsideration under the intervening Supreme Court decision in Kirtsaeng v. John Wiley & Sons, 136 S. Ct. 1979 (2016). Third, the District Court erred when it failed to award the Gayes all of their costs as the prevailing parties. Part VII, infra. ARGUMENT I. THE SUMMARY JUDGMENT RULING IS NOT APPEALABLE. The rule in this Circuit has long been that “the denial of a motion for summary judgment is not reviewable on an appeal from a final judgment entered after a full trial on the merits.” Lum v. City & Cnty. of Honolulu, 963 F.2d 1167, 1169 (9th Cir. 1992) (quoting Locricchio v. Legal Servs. Corp., 833 F.2d 1352, 1358–59 (9th Cir. 1987)). “Such a review is a pointless academic exercise.” Id. at 1170. The Supreme Court recently addressed this issue and reached the same conclusion: - 29 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 46 of 108 May a party, as the Sixth Circuit believed, appeal an order denying summary judgment after a full trial on the merits? Our answer is no. The order retains its interlocutory character as simply a step along the route to final judgment. Once the case proceeds to trial, the full record developed in court supersedes the record existing at the time of the summary-judgment motion. (Ortiz v. Jordan, 562 U.S. 180, 183–84 (2011) (citation and footnote omitted)). Prior to Ortiz, this Court recognized a narrow exception for cases in which “the district court made an error of law that, if not made, would have required the district court to grant the motion.” Banuelos v. Constr. Laborers’ Trust Funds, 382 F.3d 897, 902 (9th Cir. 2004). Ortiz noted that such an exception, if it exists, would be limited to “neat abstract issues of law” (562 U.S. at 191) (citation omitted), as was the case in the authorities cited by the Thicke Parties. See, e.g., F.B.T. Prods., LLC v. Aftermath Records, 621 F.3d 958, 962–64 (9th Cir. 2010) (whether contract was unambiguous as a matter of law); Wilson Arlington Co. v. Prudential Ins. Co. of Am., 912 F.2d 366 (9th Cir. 1990) (same). This exception may continue to be viable, based on this Court’s recent decision in Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1243 (9th Cir. 2014) (citing Banuelos, 382 F.3d at 902), which reviewed a denial of summary judgment based on an issue of law without discussion of Ortiz.11 Nevertheless, the legal issue before the 11 In Escriba, the plaintiff did move for judgment under Rule 50, (continued . . . ) - 30 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 47 of 108 Court—whether an employee can decline leave under the Family and Medical Leave Act and its California equivalent—fit within the contours of the exception discussed in Ortiz. It was a “purely legal issue” that could be resolved “with reference only to undisputed facts.” Ortiz, 562 U.S. at 190. This stands in stark contrast to situations in which “the district court determines that factual issues genuinely in dispute preclude summary adjudication.” Id. at 188 (citing Johnson v. Jones, 515 U.S. 304, 313 (1995)). Where issues of fact are involved, the rule is clear: the decision is not appealable. Id. That is plainly the case here. The Ninth Circuit’s test for substantial similarity requires the trier of fact to apply both “extrinsic” (objective) and “intrinsic” (subjective) criteria. The extrinsic test “considers whether two works share a similarity of ideas and expression based on external, objective criteria. Analytic dissection of a work and expert testimony are appropriate to the extrinsic test.” Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir. 1996) (citations omitted). The intrinsic test asks whether an “ordinary, reasonable observer” would find a substantial similarity of ( . . . continued) and the Court addressed the legal issue in connection with the motion for judgment as a matter of law as well as the motion for summary judgment. See Escriba, 743 F.3d at 1242-46. - 31 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 48 of 108 expression between the works. Id. (quoting Apple Comput., Inc. v. Microsoft Corp., 35 F.3d 1435, 1442 (9th Cir. 1994)). It focuses on “the total concept and feel of the two works.” Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042, 1045 (9th Cir. 1994) (citing Berkic v. Crichton, 761 F.2d 1289, 1292 (9th Cir. 1985)). Both prongs of the test involve issues of fact for the jury. “[A] jury may not find substantial similarity without evidence on both the extrinsic and intrinsic tests.” Kouf, 16 F.3d at 1045; see, e.g., Data East USA, Inc. v. Epyx, Inc., 862 F.2d 204, 206 (9th Cir. 1998) (“The issues of access and substantial similarity are findings of fact reviewable for clear error.”); Litchfield v. Spielberg, 736 F.2d 1352, 1355 (9th Cir. 1984) (“[s]ubstantial similarity is usually an extremely close issue of fact . . .”); Berkic, 761 F.2d at 1292 (“Substantial similarity in copyright infringement actions is a question of fact uniquely suited for determination by the trier of fact.”) (citation omitted). On a motion for summary judgment the court may only consider evidence relating to the extrinsic test; the subjective question of whether works are intrinsically similar must be left to the jury. Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir. 2004). In all other respects, the inquiry is a conventional Rule 56 review of the evidence - 32 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 49 of 108 to determine if there are genuine issues of material fact requiring submission to the jury. Although summary judgment is not highly favored on questions of substantial similarity in copyright cases, summary judgment is appropriate if the court can conclude, after viewing the evidence and drawing inferences in a manner most favorable to the non-moving party, that no reasonable juror could find substantial similarity of ideas and expression. . . . Where reasonable minds could differ on the issue of substantial similarity, however, summary judgment is improper. (Cavalier v. Random House, Inc., 297 F.3d 815, 822 (9th Cir. 2002) (quoting Shaw v. Lindheim, 919 F.2d 1353, 1355 (9th Cir. 1990))) See, e.g., Twentieth Century-Fox Film Corp. v. MCA, Inc., 715 F.2d 1327, 1329 (9th Cir. 1983) (“We intimate no opinion whether the films are substantially similar as to either idea or expression, but state only that reasonable minds could differ on those key factual issues. Thus, a grant of summary judgment was improvident.”) (footnote omitted). Indeed, the Thicke Parties concede that substantial similarity is an issue of fact. See Opening Brief at 26 (“The relevant question at summary judgment was whether any reasonable factfinder could find ‘Blurred ‘ substantially similar to the deposit copy of ‘Give’”). This is precisely the type of inquiry the Supreme Court said in Ortiz is foreclosed. It is based on a factual record that has been superseded by the one made at trial; it does not involve a “neat abstract issue[] of - 33 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 50 of 108 law” such as a “dispute[] about the substance or clarity of preexisting law,” but rather would require this Court to conduct an independent evaluation of an extensive (and moot) evidentiary record; it circumvents the requirements of Rule 50; and it would give no deference to the intervening jury verdict. II. THE THICKE PARTIES WERE NOT ENTITLED TO SUMMARY JUDGMENT. Even were the summary judgment ruling subject to review, the District Court correctly denied the Thicke Parties’ motion (and could have done so on additional grounds). As this Court has recognized with respect to jury verdicts in music copyright cases, the standard of review is particularly deferential because of the intensely factual and somewhat subjective nature of the determinations: Given the difficulty of proving access and substantial similarity, appellate courts have been reluctant to reverse jury verdicts in music cases. . . . In Arnstein v. Porter, the seminal case about musical copyright infringement, Judge Jerome Frank wrote: Each of these two issues—copying and improper appropriation—is an issue of fact. If there is a trial, the conclusions on those issues of the trier of the facts . . . bind this court on appeal, provided the evidence supports those findings, regardless of whether we would ourselves have reached the same conclusions. (Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481– 82 (9th Cir. 2000) (quoting Arnstein v. Porter, 154 F.2d 464, 469 (2d Cir. 1946))) - 34 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 51 of 108 Such deference is appropriate here, particularly considering the detailed order issued by the District Court. ER110. A. The District Court Considered Only Admissible Evidence Relating To Protectable Elements. In ruling on the motion for summary judgment, the District Court decided two preliminary legal issues, both in the Thicke Parties’ favor. A key issue in the case was whether the Gayes’ copyright was limited to what was reflected in the lead sheet. See, e.g., ER103-05, ER617, ER1485-86. The District Court held that it was. ER116–21. A secondary issue was whether statements by Thicke and Williams about drawing from Give when composing Blurred constituted direct evidence of copying (thus obviating the need to demonstrate substantial similarity of the compositions). The District Court held that they did not.12 ER121–22. 12 Both at summary judgment and trial, there was ample direct evidence of copying. This is an alternative basis on which the Court could affirm the judgment below without addressing the issue of substantial similarity. See, e.g., Range Road Music, Inc. v. E. Coast Foods, Inc., 668 F.3d 1148, 1154 (9th Cir. 2012) (“A showing of ‘substantial similarity’ is irrelevant in a case like this one, in which the Music Companies produced evidence . . . [of] direct copying of copyrighted works.”); Cellular Accessories for Less, Inc. v. Trinitas LLC, 65 F. Supp. 3d 909, 916 (C.D. Cal. 2014) (“Because Plaintiff has provided direct evidence of copying, the Court does not need to engage in a substantial similarity analysis.”). - 35 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 52 of 108 The District Court then performed an analytic dissection of the compositions, (ER122–37), as required by the extrinsic test, to determine if the evidence “provide[d] indicia of ‘a sufficient disagreement’ concerning the substantial similarity of two works ‘to require submission to a jury.’” Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1472 (9th Cir. 1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986)). In practice, this meant reviewing declarations of the parties’ musicologists, in which they analyzed and compared the individual features of the two compositions. Not surprisingly, there was little common ground between them. It was therefore left to the District Court to dissect the expert testimony to determine whether, in the end, there was a “genuine issue” for trial. See Brown Bag, 960 F.2d at 1472; Swirsky, 376 F.3d at 844 (quoting Smith, 84 F.3d at 1218, and Kouf, 16 F.3d at 1045). After a thorough review of the expert testimony, which included filtering out elements not found in the deposit copy, the District Court found there was sufficient evidence of similarity to go to the jury. See generally ER131–37. Despite efforts by both sides to disqualify or impeach the opposing experts, the District Court held that “[t]his evidence does not warrant the exclusion of either expert’s - 36 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 53 of 108 testimony,” concluding that the court’s role is to exclude opinions because they are unreliable, not because they are impeachable. ER133. “[T]hese arguments go [to] the weight, not the admissibility of the evidence.” ER133. B. Finell’s And Monson’s Opinions Were Based On Protectable Elements That Appear In The Lead Sheet. The Thicke Parties raise three specific objections to the District Court’s decision. The first is that Finell’s and Monson’s testimony should have been ruled inadmissible because they never offered an opinion based just on the elements the court found protectable. Rather, according to the Thicke Parties, they relied on a whole “constellation” of factors, many of which were based on unprotected features of the sound recording. This misstates Finell’s and Monson’s findings in two ways. First, they submitted declarations that each element, individually considered, demonstrated substantial similarity. SER84-85, SER91, SER95-99, SER103-15, SER118-23, SER126-29, SER131-33, SER137, SER141-42, SER157, SER160, SER168-70, SER181-82. The effect was greatly enhanced by the combination of multiple elements, but each could stand on its own. Second, the constellation of similarities about which they opined was based on elements found in the lead sheet. SER92, SER465-66; - 37 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 54 of 108 see ER122. Musical notation—ink on paper—is obviously not the same thing as the music it represents. Music requires sound. To create sound from sheet music requires translation and interpretation, which in this case was the function of the expert musicologists. Finell and Monson provided their expert opinions that key elements were found in the lead sheet, and the Direct Court properly found that their declarations created a triable issue of fact. SER92, SER465-66; see ER122. As for the experts’ reliance on a “constellation” of similarities, that is exactly what the law contemplates. Even were the individual elements unprotected, “[i]t is well settled that a jury may find a combination of unprotectible elements to be protectible under the extrinsic test.” Three Boys 212 F.3d at 485. The Thicke Parties’ attempt to “pull these elements out of a song individually, without also looking at them in combination, is to perform an incomplete and distorted musicological analysis.” Swirsky, 376 F.3d at 848 (referring to pitch sequence) (footnote omitted). “[N]o approach can completely divorce pitch sequence and rhythm from harmonic chord progression, tempo, and key, and thereby support a conclusion that compositions are dissimilar as a matter of law.” Id. Even the extrinsic test, with its emphasis on breaking a work down into its - 38 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 55 of 108 constituent elements, demands an appreciation of how the individual components of a song fit together within its “structural context.” Too much emphasis on discrete elements—as the Thicke Parties appear to demand with their assertion (without citation) that melodic elements may be compared only for “the same scale degrees (pitches) set to the same rhythm” (Opening Brief at 32)—is not permitted because it “may break music down beyond recognition.” Id. at 848 & n.13. C. The District Court Correctly Determined That Conflicting Testimony By Qualified Experts Created Genuine Issues Of Disputed Fact For The Jury. The Thicke Parties’ second argument is that the District Court “abdicated its duty” to make “its own objective comparison of the works,” as filtered of unprotected elements, rather than simply accepting the experts’ opinions as sufficient to create a genuine issue of fact. Opening Brief at 29. argument. There are two answers to this One is that even a cursory look at Judge Kronstadt’s opinion will confirm he fully immersed himself itself in the details of the musicological analysis. See generally ER110. He addressed each similar element identified by the Gayes’ experts, eliminated those that he found were not reflected in the deposit copy, and evaluated the degree of similarity as to such elements. See, e.g. ER122-32. - 39 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 56 of 108 Judge Kronstadt fully recognized the applicable standard and applied it. See ER114-15, ER133. All that was needed to send the case to the jury was evidence of substantial similarity as to at least one element; here Judge Kronstadt found six (“signature phrases, hooks, bass lines, keyboard chords, harmonic structures and vocal melodies”). ER133. That compares favorably to other cases in which a finding of infringement or a reversal of summary judgment has been based on less. See, e.g., Swirsky, 376 F.3d at 852 (seven notes); Three Boys, 212 F.3d at 485 (a combination of five individually unprotectable elements). The other answer is that this Court’s opinion in Swirsky illustrates the perils of a trial judge trying to play musicologist. There the district court found the expert musicologist’s methodology to be flawed and conducted its own analysis. Based on that analysis it found that none of the similarities identified by the expert raised a triable issue of fact. This Court disagreed with every one of the district court’s findings and reversed its grant of summary judgment. Swirsky, 376 F.3d at 847–48. Judge Kronstadt wisely chose not to follow the path of the trial judge in Swirsky. Although he closely reviewed and evaluated the experts’ opinions, he did not attempt to substitute his own - 40 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 57 of 108 musicological analysis for theirs. Having critically evaluated their testimony and limited it to the elements he found were protected by the Gayes’ copyright, he left to the jury to choose between the competing opinions, which is exactly what the law requires. “So long as the plaintiff can demonstrate, through expert testimony that addresses some or all of these elements and supports its employment of them, that the similarity was ‘substantial’ and to ‘protected elements’ of the copyrighted work, the extrinsic test is satisfied.” 376 F.3d at 849.13 D. The Gayes’ Copyright Is Not “Thin,” And The Test For Infringement Is Substantial Similarity, Not Virtual Identity. Finally, the Thicke Parties contend that the District Court erred in applying the normal test for substantial similarity rather than the 13 The District Court’s decision was consistent with the Ninth Circuit authorities cited by the Thicke Parties for the proposition that summary judgment is sometimes appropriate in copyright cases. See Opening Brief at 29. In each of these non-music cases, the Court’s determination turned on case-specific factors not present here. See Funky Films, Inc. v. Time Warner Entm’t Co., 462 F.3d 1072, 1081 (9th Cir. 2006) (similarities attributable to scenes a faire); Rice v. Fox Broad. Co., 330 F.3d 1170, 1180 (9th Cir. 2003) (similarities attributable to “merger and scenes a faire”); Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1472-73 (9th Cir. 1992) (similarities in unprotected or licensed elements); Narell v. Freeman, 872 F.2d 907, 911 (9th Cir. 1989) (similarities in factual information or unprotected ordinary phrases). - 41 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 58 of 108 “virtual identity” standard applicable to “thin” copyrights. Opening Brief at 30. The “virtual identity” doctrine has no application here. The Thicke Parties misinterpret what it means to have a “thin” copyright. That doctrine is based on the distinction between ideas, which are not copyrightable, and particular expressions of those ideas, which are. For example, in Satava v. Lowry, 323 F.3d 805, 810 (9th Cir. 2003), this Court noted that “the idea of producing a glass-in-glass jellyfish sculpture” is not copyrightable and that the nature of jellyfish physiology and the glass-in-glass medium leave relatively little room for creative variation. The small window of originality available when a work of art reflects something in the real world—a “fact”—is what makes for a “thin” copyright, which in turn requires a higher degree of correspondence between original and copy in order to justify a finding of infringement. The same is true of the “fashion dolls with a bratty look or attitude, or dolls sporting trendy clothing” in Mattel, Inc. v. MGA Entm’t, Inc., 616 F.3d 904, 916 (9th Cir. 2010), and the graphical user interfaces for computers in Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1444 (9th Cir. 1994). A music copyright is not “thin.” Music is imaginative, not strictly factual or functional. “Works that are not factual receive much - 42 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 59 of 108 broader protection under the copyright laws because of the endless variations of expression . . . .” McCulloch v. Albert E. Price, Inc., 823 F.2d 316, 321 (9th Cir. 1987); accord Landsberg v. Scrabble Crossword Game Players, Inc., 736 F.2d 485, 488 (9th Cir. 1984). Not surprisingly, the Thicke Parties fail to cite a single case applying the virtual identify doctrine to an original musical work.14 III. THE SCOPE OF THE COPYRIGHT IN “GOT TO GIVE IT UP” SHOULD NOT HAVE BEEN LIMITED TO THE LEAD SHEET DEPOSITED WITH THE COPYRIGHT OFFICE. The recurring theme of the Thicke Parties’ appeal is their claim the District Court did not aggressively enough limit the Gayes to the elements of Give found in the lead sheet. This claim is belied by the record—the District Court properly considered testimony about what 14 Similarly defective is the amicus brief submitted by Public Knowledge (App. Dkt. 23), which asserts that musical expression is so constrained that it is necessary, and indeed common and desirable, to permit taking of prior artists’ work. The brief contends for a wholesale revision of current copyright law and endorses a regime of “intensive borrowing.” These views are defended, in part, with an assertion that the high costs of proper copyright licensing will leave those who can’t pay unable to fully create new work. This analysis ignores entirely the history that runs in the opposite direction of publishers with substantial resources unfairly taking the creations of composers who lack the resources to mount the defense that was necessary in this case. In any event, such a complete reworking of the law would be a matter for Congress, not this Court. - 43 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 60 of 108 a musicologist skilled in the art could discern from the lead sheet— but it is also entirely moot if the comparison should not have been confined to the lead sheet in the first place. And, in fact, in this regard the District Court erred in siding with the Thicke Parties. No prior case has limited proof of the scope of a composition to the lead sheet deposited with the Copyright Office, and this one should not have either. A. This Is An Important And Timely Issue In The Music Industry. It has long been a requirement to enforce a copyright that some form of the work be deposited with the Copyright Office. For a literary work, this has meant depositing copies of the book, poem, or other literary creation. Naturally for paintings and sculpture the rule has been different. The Copyright Office, at least by the time of its first Compendium of Copyright Office Practices, recited that it would not accept deposit of a phonorecord to evidence a musical composition. 24 Fed. Reg. 4955 (June 18, 1959)15 Thus, until sometime after the 1976 15 The Compendium was a handbook which stated in its preface that it was not a “book of rules” and that the policies set forth do not have the force of law and were not binding on anyone, including even the Copyright Office staff. See Compendium I at iv (available at http://www.copyright.gov/history/comp/compendium-one.pdf, last visited December 22, 2016). - 44 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 61 of 108 Copyright Act took effect, for composers such as Marvin Gaye who did not create music with literal notation, a lead sheet that captured enough to identify the work was later created and put on file to secure enforceability of their copyright. The issue here, in the context of a pre-1978 music studio composition, is (1) should protection be strictly limited to what can be discerned from the lead sheet deposited with the Copyright Office or (2) may other evidence of the composition be introduced and, if so, what evidence may be considered—only other musical notation in the form of sheet music, as the trial judge in this case ruled, or the best evidence, the recording itself? The issue is of considerable importance for the many studio compositions created before 1978. If protection turns on the happenstance of a decades-old (and long since abandoned) Copyright Office practice, along with the degree of attentiveness of the transcriber, an open invitation to taking will be the consequence.16 Already the limitation imposed in this case has 16 Marvin Gaye is hardly the only Hall of Fame artist and composer who did not read or write notation. Motown founder and music guru Barry Gordy did not read music. Nor did Michael Jackson or Jimi Hendrix or Eric Clapton. The King, Elvis Presley, was yet another legend who composed before sound recordings could be deposited and did not know how to read or write musical notation. See, e.g., artist listings at www.biography.com. They and countless others created timeless, unique and original compositions before 1978. No doubt all would be surprised to learn that their (continued . . . ) - 45 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 62 of 108 been relied upon in at least one later opinion. See Skidmore v. Led Zeppelin, No. CV 15-3462 RGK (AGRx), 2016 U.S. Dist. LEXIS 51006, at *45–46 (C.D. Cal. Apr. 8, 2016). B. The District Court Mistakenly Believed That Under The 1909 Copyright Act The Content Of A Musical Composition Could Be Established Only With Sheet Music, Not A Phonorecord. The District Court, in its written opinion denying the summary judgment motion, acknowledged that the scope of copyright protection for a musical composition was not limited as a matter of law to the deposit copy. ER118 (citing Twentieth Century-Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1342 (9th Cir. 1981)). But the District Court determined that the only evidence outside the deposit sheet that it would consider would be “a manuscript form that was more complete than what is included in the lead sheet[]” created prior to copyright registration. Id. The District Court rejected the Gayes’ contention that the studio recordings reflected the composition. ER117. ( . . . continued) compositions are protected only to the extent that a transcriber happened to notate elements on a lead sheet. - 46 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 63 of 108 C. The Relevant History And Evolution Of The Copyright Act Do Not Support The District Court’s Narrow Reading Of The Statute. Copyright protection was first extended to musical compositions in 1831, when it was added to the 1790 Copyright Act. Copyright Act of 1831, 4 Stat. 436 (1831) (repealed 1909). At the time music became protectable by federal copyright, the only tangible medium of expression for such works was on paper in the form of sheet music. The phonograph was not invented until 1877, and the market for music sound recordings did not take off significantly until the invention of the RCA Victor Talking Machine in 1925. However, by the turn of the Twentieth Century, player pianos were in vogue. Popular music could be copied mechanically from a musical score onto devices called player piano rolls. The rolls were made of perforated paper keyed to mechanically recreate the song when the operator pumped pedals on the bottom of the piano. Composers of the music copied onto the rolls without their consent sued for copyright infringement. See generally Goldstein v. Cal., 412 U.S. 546, 564-65 (1973); White-Smith Music Publ’g Co. v. Apollo Co., 209 U.S. 1, 10-11 (1908). In the landmark White-Smith case, the Supreme Court held that the only expression protected by copyright in the case of a musical composition was the sheet music, and only a copy in the form of duplicate sheet music would be an infringement: - 47 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 64 of 108 Various definitions have been given by the experts called in this case. The one which most commends itself to our judgment is perhaps as clear as can be made, and defines a copy of a musical composition to be “a written or printed record of it in intelligible notation.” . . . A musical composition is an intellectual creation which first exists in the mind of the composer; he may play it for the first time upon an instrument. It is not susceptible of being copied until it has been put in a form which other[s] can see and read. (209 U.S. at 17 (emphasis added)) Thus, the court held that the makers of the player piano rolls owed nothing to the song composers. Id. The Court invited Congress to change the law if it disagreed with the result (id. at 18), which Congress promptly did in the 1909 Copyright Act. Copyright Act of 1909, 35 Stat. 1075 (1909) (repealed 1978). If the authors of the 1909 Copyright Act had wanted to limit musical composition copyrights to sheet music using standard notation, they could have easily done so. The Act contains no such limitation. See id. Instead it provides in Section 1(e) that protection extends to “any system of notation or any form of record in which the thought of an author might be recorded and from which it may be read or reproduced.” Id. §1(e). Section 12 of the Act requires only that a “complete copy” of the composition be deposited with the Copyright Office. Id. §12. The Act specifically undid the effect of White-Smith by mandating a fixed royalty payment to composers - 48 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 65 of 108 from anyone (including makers of player piano rolls) who mechanically reproduced a song.17 D. The Purpose Of The Deposit Requirement Is Not To Define The Scope Of The Copyright. Although the exact nature of the deposit requirement has changed over the years, its function has always been purely “archival.” 2 NIMMER ON COPYRIGHT §7.17[A] (2016). The courts have identified several purposes that underlie this archival function. One is “to enforce contributions of desirable books to the Library” of Congress. Ladd v. Law & Tech. Press, 762 F.2d 809, 813 (9th Cir. 1985) (“[T]he purpose of this deposit requirement, of which section 407 is the current version, is not proof or preservation of copyright but the acquisition of books for the Library.”). A second purpose is providing “sufficient material to identify the work in which the registrant claims a copyright.” Data Gen. Corp. v. 17 The 1909 Act did not extend federal copyright protection to sound recordings themselves. Protection of sound recordings was governed by state law until coverage was extended to sound recordings by Congress in 1972 for recordings made after February 15, 1973. The 1976 Act mandated deposit of two complete phonorecords with respect to sound recordings. 17 U.S.C. §407(a)(2). As to compositions, the Copyright Act continued to require deposit of “two complete copies of the best edition.” Id. §407(a)(1); see also id. §408(b). - 49 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 66 of 108 Grumman Sys. Support Corp., 36 F.3d 1147, 1161–62 (1st Cir. 1994) (citations omitted). A third purpose “is to furnish the Copyright Office with an opportunity to assess the copyrightability of the applicant’s work,” which it must do before issuing a registration certificate. Id. at 1162; see, e.g., Xoom, Inc. v. Imageline, Inc., 93 F. Supp. 2d 688, 697 (E.D. Va. 1999).”18 What the deposit requirement does not do is define the scope of the copyright. “[W]hether the work is published or unpublished, the Copyright Act when viewed as a whole negates the notion that deposit requirements are for the purpose of delineating the scope of a copyright through public disclosure.” Nat’l Conference of Bar Exam’rs, 692 F.2d at 487 88; accord, Scentsy, Inc. v. B.R. Chase, 18 Section 408 and its predecessors do require submission of a “complete” copy, but completeness, in this context, means simply that what is deposited must be sufficient to demonstrate copyrightability and to distinguish this work from all others. See, e.g., Nat’l Conference of Bar Exam’rs v. Multistate Legal Studies, Inc., 692 F.2d 478, 486 87 (7th Cir. 1982) (the deposit may consist “of only identifying materials”). Consistent with this relatively modest objective, courts have regularly rejected attempts to apply a strict standard of completeness, ruling that it is enough if the deposit copy contains the work’s essential features. See, e.g., Nicholls v. Tufenkian Import/Export Ventures, Inc., 367 F. Supp. 2d 514, 520 (S.D.N.Y. 2005) (deposit of incomplete or erroneous materials is harmless as long as they do not “vary in essential respects” from the copyrighted work). - 50 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 67 of 108 LLC, 942 F. Supp. 2d 1045, 1051 (D. Idaho 2013), aff’d in part & rev’d in part on other grounds sub nom., Scentsy, Inc. v. Harmony Brands, LLC, 585 F. App’x 621 (9th Cir. 2014); Sylvestre v. Oswald, No. 91 Civ. 5060, 1993 U.S. Dist. LEXIS 7002 at *4 (S.D.N.Y. May 18, 1993); KnowledgePlex v. Placebase, Inc., No. C 08-4267, 2008 U.S. Dist. LEXIS 103915, at 29–30 (N.D. Cal. Dec. 17, 2008) (“[T]o the extent that Defendant argues that the scope of the Court’s subject matter jurisdiction is limited to allegations based on [the deposit copy], Defendant provides no authority for such a parsing of the Ninth Circuit’s rule, and the Court has found none.”).19 See also Washingtonian Publ’g Co. v. Pearson, 306 U.S. 30, 41 (1939) (“the requirement for deposit is not for the purpose of a permanent record of copyrighted publications and . . . such record is not indispensable to the existence of the copyright”). Thus the ruling of the trial judge refusing to limit the copyright to the lead sheet was correct. 19 Before 2010, courts sometimes described the Copyright Act’s procedural requirements as jurisdictional. However, the Supreme Court has corrected that characterization, holding in Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 157–69 (2010), that the registration requirement is merely a precondition to suit and not jurisdictional. The deposit requirement falls under the same rationale. - 51 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 68 of 108 E. The 1997 Amendment Regarding Publication Has No Bearing On The Scope Of The Copyright In A Pre-1978 Music Composition. Despite ruling that the scope of the copyright could be established with evidence outside the lead sheet, the District Court excluded the best evidence: the recording made at the very moment Marvin Gaye composed Give in studio.20 Ironically, the Court grounded its ruling on a separate law enacted in 1997, Pub. L. 105-80, §11, codified at 17 U.S.C. §303(b), that was intended to protect composers from an entirely different erosion of their rights. The 1997 law addressed rulings by some courts, including this one, that distribution of a phonorecord embodying the composition could constitute a publication and could result in the composition passing into the public domain. Properly understood, the 1997 Amendment has no bearing on the issue of the scope of a copyright and certainly does not effectuate the perverse result of eviscerating the rights of composers under the 1909 Copyright Act. The issue as to whether or not release of a phonorecord was or was not a “publication” traveled a bumpy road from 1909 to the end 20 Notably, there was never any dispute in this matter that the recording accurately reflected the full composition; the contention by the Thicke Parties was the purely technical argument that the only elements of the composition protected by copyright were those found in the deposit copy. - 52 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 69 of 108 of the Twentieth Century. The significance of that journey was rooted in the requirement that publications be marked with a copyright notice as well as the requirement of timely filing of notice with the Copyright Office. Failure to comply resulted in the work entering the public domain, and alleged infringers often asserted the copyright owner’s failure to comply with filing and notice requirements as a defense. The leading appellate case, Rosette v. Rainbo Record Mfg. Corp., 546 F.2d 461, 462 63 (2d Cir. 1976), avoided this harsh outcome by ruling that the sale of phonorecords was not a “publication” and therefore the copyright in the composition had not been lost. In La Cienega Music Co. v. ZZ Top, 53 F.3d 950 (9th Cir. 1995), this Circuit addressed this issue and ruled that, indeed, sale of a phonorecord was a publication and failure to observe the notice and filing requirements was fatal. As a result, there was an outcry from recording companies and composers who were faced with significant loss of all copyright protection for their music. Congress acted promptly to undo La Cienega with an amendment adding Section 303(b), which “clarified” that sound recordings published before 1978 were not “publications” and thus the rights forfeiture was avoided. - 53 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 70 of 108 See ABKCO Music, Inc. v. LaVere, 217 F.3d 684, 689-92 (9th Cir. 2000). The District Court’s reliance on the 1997 Amendment as forbidding consideration of the phonorecord was in error. Neither the 1997 Amendment nor any part of the 1909 Copyright Act provided that “publication” defines the metes and bounds of the work itself. Whether distribution of the phonorecord constitutes publication has no bearing on the question of copyright scope. F. Relevant Precedent Does Not Limit Studio Composition Copyrights To Musical Notation. No case before this one ever construed a music copyright in a studio composition to be limited to either what was deposited or to sheet music. Two prior cases, where such a limitation was suggested and rejected, bear directly on the analysis. The first is Three Boys Music Corp. v. Bolton, 212 F.3d 477 (9th Cir. 2000). The Isley Brothers wrote and recorded “Love Is a Wonderful Thing” in studio in 1964. They filed a lead sheet of the song as their deposit with the copyright office. Id. at 486. In a challenge similar to the one in this case, Michael Bolton argued that deposit copy lacked three of the five elements that were allegedly copied from the sound recording and that as a result the deposit copy was not a “complete copy.” Id. The essence of the challenge, although characterized a bit differently in - 54 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 71 of 108 that case, was that the sheet music trumped the sound recording.21 The district judge rejected the claim that the deposit was inadequate or that its content was limiting and allowed the full sound recording of Love to be played to the jury. SER437-41, SER444-52. On appeal, this Court affirmed, holding that “our definition of a ‘complete copy’ is broad and deferential: ‘Absent fraud and prejudice, inaccuracies in copyright registrations do not bar actions for infringement’.” 212 F.3d at 486 (citation omitted). Neither court had any issue with the proposition that comparison of the two recorded compositions was a proper and an appropriate way to understand and apply the work the composer had created in studio.22 21 Indeed, the expert witness for Bolton pointed out that the Isley Brothers’ recording contained two elements (of the accused combination of five elements) that were not in the deposited lead sheet and that another accused element was different from the lead sheet. SER437-41, SER444-52. 22 The District Court distinguished Three Boys on the ground that it “address[ed] only subject matter jurisdiction, not the material actually protected by the copyright.” ER119. Even if that characterization were correct, the fact the jury was allowed to compare the sound recordings and the proof was not limited to elements found in the deposit copy means that both courts in Three Boys believed the Isley Brothers’ copyright extended to the elements contained in the sound recording. That the deposit and registration requirements are in fact not jurisdictional—see Reed Elsevier, 559 U.S. at 157–69—merely reinforces the relevance of Three Boys to the issues in this case. - 55 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 72 of 108 The second case is Bridgeport Music, Inc. v. UMG Recordings, Inc., 585 F.3d 267 (6th Cir. 2009). As in this case, the music at issue in Bridgeport was created in a sound studio without benefit of a score. George Clinton and two collaborators (“Clinton”) created the funk song “Atomic Dog.” Because the song was composed in 1982, there were two federal copyrights obtained, one for Clinton in the composition and the second by Capitol Records in the sound recording. Three elements in the sound recording of Atomic Dog copied in the accused song “D.O.G. in Me” were: the “bow-wow” refrain the use of “dog” in a low tone of voice at regular intervals, and the sound of rhythmic panting. See id. at 276. The defendant UMG argued that the jury should not have been allowed to hear either the use of “dog” in the low tone or the panting because they were not reflected in later published sheet music and they were owned by Capitol (a non-party) as part of the sound recording copyright and not by Clinton as part of the composition. Id. The Court firmly rejected the UMG claim. “Uncontroverted testimony at trial established that the song was composed and recorded in the studio simultaneously, and, therefore, - 56 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 73 of 108 the composition was embedded in the sound recording.” 585 F.3d at 276 (emphasis added).23 G. The Fundamental Purpose Of The Copyright Laws Is Served By Protecting The Work Of Artists Without Regard To Their Music Literacy. The public policy interests at stake here weigh heavily in the favor of Marvin Gaye and others composers of his era who did not use music notation. Tying the scope of protection to when or how a work was “published” is not in accord with the broad protection for creative works intended by the Copyright Clause, with any court decision in the last century, or with the intent of Congress.24 The 1909 Copyright Act protects not just sheet music but “any form of record in which the thought of an author may be recorded and from which it may be read or reproduced.” Copyright Act of 23 The same is true here: no one disputes that the composition recording reflected the best evidence of Marvin Gaye’s creation. The District Court acknowledged that Bridgeport was “significant” but distinguished it based on the same mistaken belief that the 1909 Act restricted evidence of the scope of a copyrighted composition to a “publication.” ER120. 24 The approach also invites unnecessary disputes about what is reflected in a lead sheet and imposes additional costs on parties who are required to obtain archival documents, present expert testimony on the interpretation of the lead sheet, and create new or edited audio recordings in order to allow the jury to apply the intrinsic test. The rule in place in every case before this one avoided these difficulties. - 57 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 74 of 108 1909, 35 Stat. 1075 §1(e) (1909) (repealed 1978) (emphasis added). There can be no question here that the “form of record” from which Marvin Gaye’s “thought” may be best “read or reproduced” is the compositional recording made in studio, whether or not it constituted a “publication.” Giving that phrase its intended breadth—and protecting the fruits of creativity regardless of the form in which they manifest themselves—is the best way to encourage the creation of original works. Justice Holmes stated it succinctly in his concurring opinion in White-Smith, over one hundred years ago: The [copyright] protection is confined to the specific form, to the collocation [of visible or audible points] devised, of course, but one would expect that, if it was to be protected at all, that collocation would be protected according to what was its essence. One would expect the protection to be coextensive not only with the invention, which, though free to all, only one had the ability to achieve, but with the possibility of reproducing that result which gives to the invention its meaning and worth. (209 U.S. at 19 20 (Holmes, J. concurring)). IV. THE THICKE PARTIES ARE NOT ENTITLED TO A NEW TRIAL. A. The Jury’s Verdict And The District Court’s Denial Of The Thicke Parties’ Rule 59 Motion Are Entitled To Substantial Deference. Because the Thicke Parties failed to preserve their right to challenge the jury’s verdict as a matter of law under Rule 50, they are limited to appealing the District Court’s denial of their motion for - 58 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 75 of 108 new trial under Rule 59. See Nitco Holding Corp. v. Boujikian, 491 F.3d 1086, 1087, 1089 90 (9th Cir. 2007) (applying Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 (2006)). The standard of review applicable to such a motion is “stringent.” Ace v. Aetna Life Ins. Co., 139 F.3d 1241, 1248 (9th Cir. 1998). A jury verdict may be set aside only if it “is against the great weight of the evidence, or it is quite clear that the jury has reached a seriously erroneous result.” Id. “[W]here the basis of a Rule 59 ruling is that the verdict is not against the weight of the evidence, the district court’s denial of a Rule 59 motion is ‘virtually unassailable. In such cases, we reverse for a clear abuse of discretion only where there is an absolute absence of evidence to support the jury’s verdict.’” Kode v. Carlson, 596 F.3d 608, 612 (9th Cir. 2010) (emphasis in original) (quoting Desrosiers v. Flight Int’l of Fla., Inc., 156 F.3d 952, 957 (9th Cir. 1998)). This is a “significantly deferential test that looks to whether the district court reache[d] a result that is illogical, implausible, or without support in inferences that may be drawn from the record.” United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc). “The district court’s denial of a motion for a new trial is reversible ‘only if the record contains no evidence in support of the verdict’ or if the district court ‘made a mistake of law.’” DSPT Int’l, Inc. v. Nahum, 624 F.3d 1213, - 59 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 76 of 108 1218 (9th Cir. 2010) (quoting Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007)); see, e.g., EEOC v. Go Daddy Software, Inc., 581 F.3d 951, 966 (9th Cir. 2009). B. The Jury Instructions Were Not Erroneous Or Misleading. This Court reviews jury instructions de novo for statements of law and under an abuse of discretion standard with respect to their formulation. SEIU v. Nat’l Union of Healthcare Workers, 718 F.3d 1036, 1047 (9th Cir. 2013). The instructions are reviewed not in isolation but “as a whole to determine whether they are misleading or inadequate to guide the jury’s deliberation.” United States v. Kaur, 382 F.3d 1155, 1157 (9th Cir. 2004) (quoting United States v. Vallejo, 237 F.3d 1008, 1024 (9th Cir. 2001)). “[J]ury instructions must fairly and adequately cover the issues presented, and must correctly state the law, and must not be misleading.” Hunter v. City of Sacramento, 652 F.3d 1225, 1232 (9th Cir. 2011) (quoting Dang v. Cross, 422 F.3d 800, 804 (9th Cir. 2005)). “An error in instructing the jury in a civil case does not require reversal if that error is harmless.” Wall Data Inc. v. L.A. City Sheriff’s Dep’t, 447 F.3d 769, 784 (9th Cir. 2006).25 25 A further basis for rejecting the Thicke Parties’ jury instruction arguments is waiver. Although the District Court declined to find waiver in its order denying the new trial motion (ER20-21), in fact the Thicke Parties failed to make any objection on the record to the (continued . . . ) - 60 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 77 of 108 1. Instruction 42—Subconscious Copying. The Thicke Parties do not dispute that Instruction 42 was a correct statement of the law. See, e.g., Three Boys, 212 F.3d at 482–83 (“Subconscious copying has been accepted since Learned Hand embraced it in [Fred Fisher, Inc. v. Dillingham, 298 F. 145, 147–48 (S.D.N.Y. 1924)].”); Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 741 (9th Cir. 1971) (“copying need not be conscious, but ‘may be the result of subconscious memory derived from hearing, seeing or reading the copyrighted work at some time in the past’”) (quoting ALAN LATMAN, HOWELL’S COPYRIGHT LAW 129 (4th ed. 1962)). Instead they argue that subconscious copying is only relevant to access, and because the Thicke Parties admitted access, an instruction on that subject was not only superfluous but misleading. Accordingly, this objection goes to “formulation” and is reviewed for abuse of discretion. The Thicke Parties’ premise is mistaken, for at least two reasons. As the District Court recognized, other instructions made clear that the jury could not find infringement without finding substantial similarity: “it is not plausible to read the statement of Instruction 42 on subconscious copying as advising the jury that it did not have to find ( . . . continued) final version of Instruction 42 and affirmatively stated that they had “no objection to it as modified” with respect to Instruction 43. ER1485. - 61 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 78 of 108 facts that would establish…substantial similarity.” ER22 (citing Instructions 27 and 28). Second, the law’s recognition that copying can be done subconsciously is not relevant solely to access; it also applies where access is admitted but intentional copying is denied. See, e.g., ABKCO Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d 988, 997–98 (2d Cir. 1983) (finding subconscious copying when access was admitted). This is how a jury can reconcile admitted access with non-willful copying, as it did here. As the District Court observed, “[a]lthough the Thicke Parties conceded access to ‘Got to Give It Up,’ the jury could have concluded that they intended only to copy unprotected elements of the song in ‘Blurred Lines,’ but accidentally or subconsciously copied protected elements.” ER21–22. Because “[i]ntention to infringe is not essential” to a finding of copyright infringement (Buck v. Jewell-La Salle Realty Co., 283 U.S. 191, 198 (1931)), the instruction was necessary to prevent the jury from mistakenly finding no liability because the copying was unintentional. Indeed, given the Thicke Parties’ denial of copying, it would have been error for the District Court not to give such an instruction.26 26 The instruction regarding subconscious copying was also harmless error for two other reasons. First, the Gayes claimed direct copying. Evidence of direct copying obviates any need to show access (continued . . . ) - 62 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 79 of 108 2. Instruction 43—Substantial Similarity. The Thicke Parties complain that Instruction 43 was erroneous because it purportedly “failed to adequately distinguish between protectable and unprotectable material.” Opening Brief at 41 (citing Harper House, Inc. v. Thomas Nelson, Inc., 889 F.2d 197, 206 (9th Cir. 1989)). The Thicke Parties recognize that this alleged deficiency could have been cured by other instructions, but they deny that any of the other instructions “identified the unprotected material in ‘Got To Give It Up,’ or instructed the jury that it had to identify such material and how to do so.” Id. There were in fact several other instructions that supplied the direction the Thicke Parties contend was missing from Instruction 43, many of which were addressed by the District Court in ruling on the Thicke Parties’ motion for a new trial. See ER23–24. The most important of these were Instructions 30 and 35, which described the ( . . . continued) and substantial similarity, which are merely means of inferring copying in the usual case where there was no admission of copying. See Range Road, 668 F.3d at 1154. Second, the Gayes requested a jury instruction concerning the inverse ratio rule. ER228. This rule requires a lower degree of proof of substantial similarity when a high degree of access is shown—”substantial similarity is inextricably linked to the issue of access.” Three Boys, 212 F.3d at 485. Under the inverse ratio rule, the jury would have been required to consider the nature and degree of the Thicke Parties’ access. Because the jury should have been instructed on the inverse ratio rule, any error in giving an instruction concerning subconscious copying was harmless. - 63 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 80 of 108 types of “unprotected” elements the jury was not allowed to consider in performing its substantial similarity analysis. ER79, ER81–85. Instruction 35, in particular, informed the jury that the copyrighted material for Give was what was deposited with the Copyright Office, that they were to consider the testimony each side offered about what was in the deposit copy in determining if the copyrighted work had been infringed, and that they were not to consider the commercially released sound recording. ER81–85. Instructions 25 and 26 further confirmed that copyright protection does not extend to ideas but only to the expression of the ideas. ER76-77. This was more than adequate to inform the jurors that they were to consider only the protectable elements of Give found in the deposit copy when conducting their inquiry into substantial similarity.27 Going beyond this and attempting to formulate an explicit list of protected and unprotected elements would have itself been error. The musical elements in the lead sheet, which constitute the protected work according to the District Court’s interpretation, were disputed issues of fact to be determined by the jury based on conflicting expert testimony. See generally ER110. Presenting the jury with a list 27 In Harper House, by contrast, the trial court failed to instruct the jury at all on distinguishing between protectable and unprotectable elements. See 889 F.2d at 206–08. - 64 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 81 of 108 of specific protected elements would have usurped its fact-finding function. See Dream Games of Ariz., Inc. v. PC Onsite, 561 F.3d 983, 989 (9th Cir. 2009) (“The district court correctly rejected PC Onsite’s proposed instructions that listed four specific protected elements . . . because they would have improperly limited the jury’s consideration to four aspects . . . as opposed to the whole work.”). The Dream Games court held that the District Court was not required to identify the protectable elements; its only obligation was to explain to the jury what was unprotected, something that the District Court in this case did throughout the instructions. C. The District Court Did Not Abuse Its Discretion In Admitting Expert Testimony. Evidentiary decisions of a District Court should not be reversed absent clear abuse of discretion and a showing of prejudice. See, e.g., Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 462 (9th Cir. 2014) (en banc); Wall Data, 447 F.3d at 782. This Court will reverse an evidentiary ruling for abuse of discretion only if the error “more likely than not affected the verdict.’” Hinkson, 585 F.3d at 1282. The Thicke Parties’ complaints about the testimony of the Gayes’ musicologists is little more than a rehash of their summary judgment argument. Having persuaded the District Court to limit testimony comparing the two works to elements found in the lead sheet, the - 65 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 82 of 108 Thicke Parties complain that the court did not do a good enough job of policing that boundary and the testimony of the Gayes’ musicologists was improper because it addressed “unprotected elements.” Opening Brief at 44–46.28 The District Court reviewed each of these claimed errors in considerable detail in its post-trial rulings and found in each instance that the experts provided well-grounded testimony that these elements were found in the lead sheet. ER11–16. At most, the Thicke Parties’ complaints went to a disputed issue of fact, and the District Court, quite sensibly, did not try to impose its own judgment about such issues.29 This is consistent with the approach approved by this Court in Swirsky. That case involved a comparison of “One of Those Love Songs,” released in 1998 on Xscape’s Traces of My Lipstick album, with Mariah Carey’s recording of “Thank God I Found You,” released in 28 As with many of the Thicke Parties’ summary judgment arguments, this objection evaporates if the Gayes’ proof should not have been confined to the lead sheet in the first place. See Part III, supra. 29 While the District Court had concluded at summary judgment that two items (Theme X and certain keyboard parts) were not in the lead sheet, this conclusion was based on Finell’s preliminary declaration and report; the District Court explained that by the time of trial Finell had submitted a supplemental declaration that established, based on her “experience and expertise in how to evaluate sheet music” that both items in fact appeared in the lead sheet. ER10-14. - 66 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 83 of 108 1999 on her Rainbow album. The plaintiffs’ expert witness, Dr. Robert Walser, opined that the two songs had substantially similar choruses and, among other things, he offered visual “transcriptions” of the songs. 376 F.3d at 845 46. Because Walser’s transcriptions omitted parts he characterized as “ornamented,” the District Court found his methodology flawed because it was “selective.” Id. at 846 47. The District Court substituted its own musicological analysis of the songs for that of Walser, found there were no substantial similarities between any of their protected elements, and granted summary judgment to the defendants. The Ninth Circuit reversed, finding “[t]here is nothing inherently unsound about Dr. Walser’s musicological methodology in this case.” Id. at 846 47. The Court observed that applying the extrinsic test to musical compositions is not a rote, mechanical process but rather requires expert analysis that takes account of the unique characteristics of each work. In analyzing musical compositions under the extrinsic test, we have never announced a uniform set of factors to be used. We will not do so now. Music, like software programs and art objects, is not capable of ready classification into only five or six constituent elements; music is comprised of a large array of elements, some combination of which is protectable by copyright. . . . There is no one magical combination of these factors that will automatically substantiate a musical infringement suit; each - 67 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 84 of 108 allegation of infringement will be unique. So long as the plaintiff can demonstrate, through expert testimony that addresses some or all of these elements and supports its employment of them, that the similarity was “substantial” and to “protected elements” of the copyrighted work, the extrinsic test is satisfied. (Id. at 849) The question of what musical elements are found in a lead sheet is no different than the question of what musical elements are found in a sound recording. Both require expert analysis, and both sides in an infringement case are free to introduce evidence showing their interpretation of the musical elements as they did here. See, e.g., ER1136, ER1141 (testimony by Wilbur concerning lead sheet). As the District Court concluded in ruling on the parties’ post-trial motions: [W]hether “Theme X,” the keyboard parts, the bass melody or the extended parlando section appeared in the deposit copy required both factual and legal determinations. . . . [W]hether the visible notation that appeared on the deposit copy covered these forms of expression required among other things, the resolution of disputed facts based on expert testimony. The Gaye Parties made a sufficient showing that Finell’s opinion on these matters was admissible because it appropriately applied accepted musicological principles and methods to the facts of the case. The jury found that the works were substantially similar after considering expert testimony. The Counterclaim-defendants do not offer a sufficient basis to disturb that finding. (ER42 43) - 68 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 85 of 108 D. The Jury’s Verdict Is Not Against The Great Weight Of The Evidence. The Thicke Parties’ argument that the jury got it wrong and the verdict is against the great weight of the evidence addresses both the extrinsic and the intrinsic tests for substantial similarity. On the former, the Thicke Parties repeat their critique of Finell’s and Monson’s testimony and essentially ask this Court to reject their musicological analysis in favor of Wilbur’s. But asking this Court to referee a dispute between musicologists at this remove, and to overturn the call made first by the jury and then by the judge who heard the testimony first hand, goes well beyond correcting an abuse of discretion.30 The jury’s application of the intrinsic test, which involves a subjective comparison is even less amenable to review by this Court. It is unclear it is reviewable at all. See Funky Films, Inc. v. Time Warner 30 The Thicke Parties give short shrift to the evidence at trial. They assert that “there was even less evidence of extrinsic substantial similarity at trial than on summary judgment, and no evidence of intrinsic similarity.” Opening Brief at 22. Both statements are belied by the record. The trial testimony identified additional elements of similarity found in the lead sheet that were not considered at summary judgment, including word painting and the parlando section. See, e.g., ER648-61. With respect to intrinsic similarity, the jury was able to compare the recording of Blurred and the edited sound recordings prepared by Finell for trial, as well as musical excerpts played on a keyboard by Finell during her testimony and the “mash ups” prepared by Monson. See, e.g., ER550, ER2417, ER864-69; SER904-16. - 69 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 86 of 108 Entm’t Co., 462 F.3d 1072, 1077 (9th Cir. 2006) (“the intrinsic test…is exclusively the province of the jury”); Shaw, 919 F.2d at 1361 (“subjective assessment of similarity . . . is for the trier of fact to determine.”). “We will not second-guess the jury’s application of the intrinsic test.” Three Boys, 212 F.3d at 485. Regardless, the trial record here more than adequately supports the District Court’s conclusion that it “cannot be found, that the jury’s conclusion that the two works have intrinsic similarity was against the clear weight of the evidence.” ER29. V. THE AWARD OF ACTUAL DAMAGES, PROFITS, AND A RUNNING ROYALTY WAS PROPER. The Thicke Parties challenge the jury’s damages award, as adjusted by the District Court,31 but face the same procedural hurdle—they did not move for judgment as a matter of law. To the extent the District Court denied the Thicke Parties’ Rule 59 motion on damages, the standard of review is highly deferential: the verdict will not be overturned unless the damages are “grossly excessive or monstrous.” 31 The Gayes accepted the District Court’s remittitur of the jury’s award of $4 million in actual damages to $3,188,527.50 and its remittitur of the jury’s award of $1,610,455.31 in profits against Williams to $357,630.96. See ER31–37. - 70 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 87 of 108 Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1191 (9th Cir. 2002) (citation omitted). The running royalty granted by the District Court is in the nature of an injunction, and is reviewed for abuse of discretion. eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). A. The Evidence Fully Supports The Award Of Actual Damages. The actual damages award was supported by the testimony of the Gayes’ expert witness, Nancie Stern. Her testimony followed established precedent regarding a hypothetical license negotiation. Her qualifications were unchallenged both here and below. During the Daubert hearing conducted by the District Court, Stern testified that she has 30 years of experience in the music business and over the past 20 years she has performed valuations on and cleared thousands of the exact same kind of license at issue here. ER906, ER909. Indeed, she testified that her company is one of very few in the country that performs such licensing valuation services for the music industry. ER911; see also ER959. Those services require determining the fair market value of sound recording and compositional elements from older songs when licensed for use in new songs, the exact expertise required here. ER906–08; see also ER956. She has worked for both record labels and artists. ER909, ER920; ER950, ER956, ER959. - 71 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 88 of 108 Her extraordinary credentials established, Stern explained that to determine an appropriate fee for using elements from an older composition, music valuators consider the nature and extent of the use, based on an analysis of the similarities between the two works. ER906–08, ER910; see also ER956, ER958. She said that the evaluation is highly dependent on the specific facts of the particular use, and requires each song be evaluated independently. Id. Applying this methodology, Stern discussed similarities in “the melody and the instrumentation around the melody, the keyboards, the bass line and other instrumentation,” which are all reflected in the deposit copy based on Finell’s testimony.32 ER969-70. Stern also testified that in performing her analysis, she pays particular attention to “whether there is a musical usage that’s throughout the entire song,” and whether “the melody and the hook” are used in the new song. ER910. Industry standards are, she testified, that where the use involves the melody or hook of the song, the license rate is 50% or more. ER910. Put another way, the essence of her testimony was that the reasonable and standard price the 32 Stern initially spent an hour evaluating the full-length sound recordings, but later, after a limiting evidentiary ruling by the Court, focused her analysis and testimony solely on the edited sound recordings reflecting the compositional elements in the deposit copy lead sheet. ER915, ER918, ER922, ER961-62. - 72 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 89 of 108 composer will require and the subsequent user will pay for the right to use the heart of the music is at least 50%. ER958, ER963-64, ER967. In evaluating the use of Give in Blurred, Stern found and Finell testified that “the melody was the most predominant factor in the hook to the song.” ER972-73 (emphasis added). Based on her analysis applying industry custom and practice and her vast experience, Stern concluded the use of Give by Blurred would have resulted in a 50% licensing fee being granted to the Gayes if a license had been negotiated before release of Blurred.33 ER963-64. While Stern’s methodology alone is sufficient to make her opinion on a hypothetical license fee of 50% reliable, her analysis was also supported by Finell’s testimony. See Country Rd. Music, Inc. v. MP3.com, Inc., 279 F. Supp. 2d 325, 330 (S.D.N.Y. 2003) (citing 33 Plaintiffs in their brief seek to erect and then tear down a straw man. Plaintiffs suggest Stern endorsed their own notion that a hypothetical royalty analysis for the taking and use of original song elements begins with an inflexible rule dividing lyrics from music, and, since Stern opined 50% was the resulting royalty rate, she must have concluded the melodies of the two songs are identical. This is not what Stern said: her testimony was that she would “look at” this division as a starting point but that “every usage is different.” ER958. In any event, Plaintiffs would have it that one who took all of the music from the Beatles’ “Let It Be” but used different words could rest content that the ultimate price for theft could never exceed 50%. Of course, the Beatles would demand and receive far more for such a usage. The taking of the key recognizable part of a melody cannot and would not be calculated in bars and measures. - 73 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 90 of 108 Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 22 (2d Cir. 1996)). As previously recounted, Finell testified (1) almost every bar of Blurred contained an element similar to Give, (2) numerous similarities acted together as a “constellation” of similarities she found “stunning,” (3) it was “highly unusual” for multiple similar elements to appear at the same time in the same way, and the (4) the “heartbeat” of the song, the bass and keyboard, were “always going.” ER559, ER581–82, ER661– 62, ER666. Ignoring entirely the fact that Stern, with appropriate reliance on musicology testimony, directly applied actual experience with thousands of other comparable negotiations, Appellants essentially assert that, in the absence of actual prior licenses of Give itself, no competent expert opinion based on such experience could be rendered. They cite as support, but without discussion of their facts, Oracle Corp. v. SAP AG, 765 F.3d 1081 (9th Cir. 2014), and Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292 (Fed. Cir. 2011). The court in Oracle plainly stated that, while an expert may review “benchmark” agreements where appropriate, “a copyright plaintiff need not [do so] in order to recover hypothetical-license damages.” 765 F.3d at 1093. It was undue speculation or rigidity that the court ruled would not suffice. Thus the court rejected in Oracle an expert opinion - 74 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 91 of 108 that Oracle and SAP would have agreed to a license of $1.66 billion based on a tentative, internal projection and in a circumstance where the relevant acquired company was bought for only $10 million and had only 358 customers. Id. at 1089-90. Similarly, an arbitrary 25% rule of thumb for all patent infringement cases, without any analysis of particular facts, was rejected by the Federal Circuit. Uniloc, 632 F.3d at 1315. Here, to the contrary, the analysis was sharply focused on the quality and amount of Give appropriated in Blurred and what license terms would ordinarily be negotiated for the rights to do so. As the District Court observed, the Thicke Parties “had the opportunity to cross-examine Stern about the allegedly unreliable basis for her opinion and did so.” ER31. The purpose of appellate review is not to recycle all of a party’s failed jury arguments in hopes of finding a friendlier audience. The District Court was correct in rejecting a new trial motion premised on the Thicke Parties’ actual damages argument, and this Court should affirm. B. The Award Of A Portion Of The Profits From Blurred Lines Was Reasonable And Is Supported By Substantial Evidence. Seeking to remake the factual record, the Thicke Parties assert that no more than 5% of Blurred infringes, rendering the award of approximately 40% of their non-publishing profits “grossly excessive.” Opening Brief at 55–56. The 5% figure comes from the - 75 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 92 of 108 testimony of the Thicke Parties’ expert (ER1123), but that testimony was disputed by the Gayes’ musicologists, both as to the quantity and quality of the misappropriation. Finell testified that protected elements of Give appeared throughout Blurred, and that these elements constituted the heartbeat of the songs. ER559. Moreover, while a plaintiff in a copyright infringement action can only recover profits “attributable to the infringement” (17 U.S.C. §504(b)), “mathematical exactness is not required” in allocating profits between infringing and non-infringing uses. Frank Music Corp. v. MGM, Inc., 772 F.2d 505, 518 (9th Cir. 1985). It is enough if the trier of fact can make a “reasonable approximation.” Cream Records, Inc. v. Jos. Schlitz Brewing Co., 754 F.2d 826, 829 (9th Cir. 1985). “The burden of proving apportionment, (i.e., the contribution to profits of elements other than the infringed property), is the defendant’s.” Frank Music, 772 F.2d at 518. “Arriving at a proper method of apportionment and determining a specific amount to award is largely a factual exercise,” which may be reversed only if “clearly erroneous.” Id. Finell’s findings of a “constellation” of similarities permeating nearly ever bar of Blurred more than adequately supports the jury’s verdict. - 76 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 93 of 108 This is another respect in which this case closely resembles Three Boys. There this Court affirmed the jury’s apportionment of 66% of the song’s profits to the five elements taken from plaintiff’s song in part because “the burden of proof was on Sony Music, and the jury chose not to believe Sony Music’s experts,” and because “a jury verdict apportioning less than 100% of the profits but more than the percentage estimates of Sony Music’s experts does not represent clear error.” Three Boys, 212 F.3d at 487. C. The Running Royalty Did Not Constitute An Abuse Of Discretion. The Thicke Parties do not dispute the authority of the District Court to award a running royalty as an alternative to a permanent injunction. See ER49 (discussing authority for running royalty). Instead, they argue only that that amount was too high and constituted an abuse of discretion. This argument simply recycles the Thicke Parties’ attack on the actual damages award and fails for the same reasons - 77 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 94 of 108 VI. THE DISTRICT COURT WAS CORRECT IN HOLDING THAT ALL OF THE COUNTERCLAIM DEFENDANTS WERE LIABLE FOR INFRINGEMENT. A. Anyone Who Distributes An Infringing Work Is Jointly And Severally Liable For Actual Damages And Severally Liable For Unlawful Profits. Section 106 of the Copyright Act gives the copyright owner the exclusive right to distribute the copyrighted work. Anyone who violates that right infringes the copyright. 17 U.S.C. §501(a). See Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 433 (1984). Copyright infringers are jointly and severally liable for actual damages and severally liable for their unlawful profits. Music, 772 F.2d at 519. distribution. Frank This includes anyone in the chain of See, e.g., Sygma Photo News, Inc. v. High Soc’y Magazine, Inc., 778 F.2d 89, 92 (2d Cir. 1985) (“All persons and corporations who participate in, exercise control over, or benefit from the infringement are jointly and severally liable as copyright infringers.”); Adobe Sys. Inc. v. Blue Source Grp. Inc., 125 F. Supp. 3d 945, 973 (N.D. Cal. 2015) (“Courts in the Ninth Circuit have held that in . . . copyright infringement cases, any member of the distribution chain of allegedly infringing products can be jointly and severally liable for the alleged misconduct.”) (citing cases) (internal quotation marks omitted); Reno-Tahoe Specialty, Inc. v. Mungchi, - 78 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 95 of 108 Inc., No. 2:12-cv-01051-GMN-VCF, 2014 U.S. Dist. LEXIS 177168, at *18 (D. Nev. Dec. 19, 2014) (“Copyright infringement is a strict liability tort and any entity in the chain of distribution is liable. The copyright owner need not prove knowledge or intent on [the] part of the defendant to establish liability for direct copyright infringement.”). B. Harris And The Interscope Parties Were Part Of The Chain Of Distribution For “Blurred Lines” And Therefore Liable For Infringement As A Matter Of Law. It is undisputed that Harris and the Interscope Parties were part of the chain of distribution for Blurred. This includes Harris’s role as a co-owner of the copyright who authorized the distribution. It follows that if Blurred infringed the Gayes’ copyright, which the jury found it did, Harris and the Interscope Parties were liable as a matter of law. C. The District Court Correctly Relied On El-Hakem And Westinghouse To Correct The Verdict. In these circumstances, the jury’s verdict of liability as to Thicke and Williams and no liability as to Harris and the Interscope Parties drew a legally impermissible distinction. The District Court properly reconciled the inconsistencies by imposing liability on all the Counter-Defendants who were in the chain of distribution. - 79 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 96 of 108 A District Court may reconcile inconsistent jury verdicts when the jury’s intent is clear and the inconsistency is attributable to instructional error. Westinghouse Elec. Corp. v. Gen. Circuit Breaker & Elec. Supply, Inc., 106 F.3d 894, 901–02 (9th Cir. 1997). Here the jury’s award of actual damages and lost profits to the Gayes means the jury necessarily found that Blurred infringed the Gayes’ copyright. Only confusion as to which parties bore the responsibility for that infringement can explain its failure to find Harris and the Interscope Parties liable. The District Court reasonably concluded that failure to give an instruction clearly defining the scope of distributor liability caused the inconsistent verdicts, and that the verdicts could be corrected in a way that followed both the law and the jury’s intent. ER45-48.34 This is consistent with Ninth Circuit precedent and does not infringe the jury’s exclusive role as fact finder under the Seventh Amendment.35 34 The Gayes proposed an instruction stating that all Counterclaim Defendants were jointly and severally liable for any infringement. The District Court rejected the proposed instruction because, although correct as to actual damages, it was incorrect as to profits, for which infringers are individually liable. ER47. The District Court later recognized that instead of rejecting the instruction in its entirety, it should have corrected the instruction and given it as thus modified. ER47. 35 The Interscope Parties also attempt to distinguish Westinghouse on the basis that the correction of the verdict there did (continued . . . ) - 80 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 97 of 108 Harris and the Interscope Parties argue that the Seventh Amendment prohibits a court from altering general verdicts even if they are legally inconsistent. The cases on which they rely, however— Zhang v. American Gem Seafoods, Inc., 339 F.3d 1020, (9th Cir. 2003), and International Longshoremen’s & Warehousemen’s Union v. Hawaiian Pineapple Co., 226 F.2d 875 (9th Cir. 1955)—do not support this broad proposition. They actually stand for the more limited principle that a court reviewing allegedly inconsistent verdicts “must uphold the judgment if it is possible to reconcile the verdicts on any reasonable theory consistent with the evidence.” Vaughan v. Ricketts, 950 F.2d 1464, 1471 (9th Cir. 1991). In Zhang, as in Vaughan, the court did not reach the question of what to do with irreconcilably inconsistent verdicts because it concluded “that it was not legally impossible for a jury to make both of these conclusions.” Zhang, 339 F.3d at 1037 (paraphrasing Vaughan); see also Int’l Longshoremen’s & ( . . . continued) not result in greater damages liability for any party. Opening Brief at 29 (citing Dimick v. Schiedt, 293 U.S. 474 (1935). The Interscope Parties did not raise this damages-specific argument below, and Westinghouse did not purport to limit its rule to situations where the correction of the verdict involved no change in a damages award. But to the extent the Court believes that the damages award against the Interscope Parties is infirm, the proper remedy is to vacate only that portion of the judgment (and only as to those parties) while leaving intact the declaratory and injunctive portions of the judgment. - 81 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 98 of 108 Warehousemen’s Union, 226 F.2d at 884 (“we cannot say there was inconsistency”). This Court addressed that issue (how a court may respond to legally irreconcilable verdicts) in El-Hakem v. BJY Inc., 415 F.3d 1068, 1074 75 (9th Cir. 2005),36 as well as in Westinghouse. In both cases this Court approved a modification of the jury’s verdicts to correct an instructional error that, in retrospect, obviously misled the jury. The extra step required in the case of inconsistent general verdicts, compared to special verdicts, is inferring the jury’s implicit findings of fact. The court in Westinghouse analogized this to the process by which courts determine what “presumptively rational jurors must have determined” when making findings about issue preclusion based on a jury verdict. Westinghouse, 106 F.3d at 901. 36 If that process is Harris and the Interscope Parties argue that El-Hakem is not relevant because it involved inconsistent special verdicts. Harris Brief at 26–27. This is wrong for two reasons. First, based on the functional definition used in Zhang, it appears these were general verdicts. Compare Zhang, 339 F.3d at 1031, with El-Hakem v. BJY Inc., 262 F. Supp. 2d 1139, 1146 (D. Or. 2003), aff’d, 415 F.3d 1068 (9th Cir. 2005). Second, the principles that apply to inconsistent special verdicts also apply to inconsistent general verdicts as long as the court can reliably discern the jury’s factual findings. See Westinghouse, 106 F.3d at 902. The more important question is whether the verdicts are irreconcilable as a matter of law—i.e., whether there is any set of facts plausibly found by the jury under which both verdicts could be legally correct. If not, then the court may correct even a general verdict. Id. - 82 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 99 of 108 inconclusive, and “it is impossible to tell which verdict is the correct one,” the inconsistent verdicts must be allowed to stand. Id. at 902. However, if the jury’s intent was clear and the inconsistency can be explained by an instructional error, the court may revise the verdicts to reflect the result the jury would have reached had it been correctly instructed. Id. Harris and the Interscope Parties also contend, as they did below, that the issue was waived by the Gayes’ failure to make a Rule 50 motion. The District Court rejected this argument, holding that “the Gaye Parties’ request to correct the verdict [was] made in the alternative as one for judgment as a matter of law and could be granted on that basis.” ER44. The District Court then proceeded to conduct a “plain error” review, as authorized by Go Daddy Software (581 F.3d at 961), pursuant to which it corrected the verdicts. ER45–48. The District Court’s review and correction of the verdicts was also authorized because the Gayes’ counsel raised the issue of potentially inconsistent verdicts prior to submission of the case to the jury. ER1470-76; see ER1515-17. This colloquy qualified as an “ambiguous or inartfully made” Rule 50(a) motion, thus allowing a post-verdict 50(b) motion. Go Daddy Software, 581 F.3d at 961 (quoting Reeves v. Teuscher, 881 F.2d 1495, 1498 (9th Cir. 1989)). This rule is given a - 83 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 100 of 108 “liberal interpretation” to avoid overly “harsh” results. Go Daddy Software, 581 F.3d at 961. VII. THE DISTRICT COURT’S ORDER DENYING ATTORNEYS’ FEES SHOULD BE REMANDED AND THE GAYES SHOULD BE AWARDED THEIR FULL COSTS. On April 12, 2016, the District Court denied the Gayes’ motions for attorneys’ fees. ER138. The court’s analysis was guided by the Supreme Court’s decision in Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994), which lists several factors a District Court should consider in deciding a motion for attorneys’ fees under Section 505 of the Copyright Act, 17 U.S.C. §505. On June 16, 2016, the Supreme Court issued its opinion in Kirtsaeng v. John Wiley & Sons, Inc., 136 S. Ct. 1979 (2016), which offered “additional guidance respecting the application of § 505.” 136 S. Ct. at 1985. In particular, the Court was concerned that the lower courts in that case had given undue weight to the reasonableness of the losing party’s positions, making it a nearly dispositive factor. “Although objective reasonableness carries significant weight, courts must view all the circumstances of a case on their own terms, in light of the Copyright Act’s essential goals.” Id. at 1989. It therefore vacated the decision denying fees “so that the District Court can take another look at Kirtsaeng’s fee application.” Id. - 84 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 101 of 108 In ruling on the Gayes’ fee application, the District Court gave considerable weight to what it viewed as the objective reasonableness of the Thicke Parties’ positions during the litigation. ER145–47. In light of the revised standard, it should be given the same opportunity afforded the district court in Kirtsaeng to “take another look” at the Gayes’ fee application in light of that decision’s “additional guidance.” The District Court also declined to award the Gayes their full costs, instead limiting them to those “incurred and unique as to” the First Claim for Relief and awarding costs to certain of the Thicke Parties with respect to the Second Claim for Relief. ER3. The Gayes objected below to this limitation. SER698. The District Court’s ruling appears to have been based on its understanding of Rule 54 and is reviewed de novo. See United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 968 (9th Cir. 1999). Federal Rule of Civil Procedure 54(d)(1) allows costs to “the prevailing party.” (Emphasis added). This language implies that there is (at most) one prevailing party. Here, the Gayes prevailed entirely with respect to the complaint and prevailed as to the major claim in the counterclaim as well as their claim for declaratory relief. The Second Claim for Relief was clearly secondary.37 37 The Federal Circuit has In post-trial proceedings, the Gayes presented evidence that (continued . . . ) - 85 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 102 of 108 recognized that “even in mixed judgment cases, punting is not an option. . . . For the purposes of costs and fees, there can be only one winner. A court must choose one, and only one ‘prevailing party’ to receive any costs award” under Rule 54. Shum v. Intel Corp., 629 F.3d 1360, 1367 (Fed. Cir. 2010). Unless a case is so close that there is no prevailing party (and no award of costs at all), a successful claimant should recover all of its fees without allocation. See, e.g., Slane v. Mariah Boats, Inc., 164 F.3d 1065, 1068 (7th Cir. 1999) (plaintiff recovers full costs when it “gets substantial relief . . . even if it doesn’t win on every claim.”). CONCLUSION The judgment below should be affirmed, with the exception that the Gayes should be awarded their full costs under Rule 54. The order denying the Gayes’ their attorney fees should be remanded for reconsideration. In the event the matter is remanded for a new trial (which the Gayes do not urge), the Court should confirm that the scope of the copyright in the Give composition may be established with the author’s contemporaneously made studio recording. ( . . . continued) only 2.4% of deposition testimony concerned the Second Claim for Relief. SER704, SER758, SER760. The District Court itself found that a reasonable apportionment between the First and Second Claims for Relief was 65%/35%. ER150. - 86 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 103 of 108 DATED: December 22, 2016. Respectfully, ARNOLD & PORTER LLP MARTIN R. GLICK DANIEL B. ASIMOW KING & BALLOW RICHARD S. BUSCH STEVEN C. DOUSE SARA R. ELLIS KING & BALLOW PAUL H. DUVALL WARGO & FRENCH LLP MARK L. BLOCK Attorneys for Defendants/CounterClaimants/Appellees/Cross-Appellants, Frankie Christian Gaye, Nona Marvisa Gaye LAW OFFICES OF PAUL N. PHILIPS, APLC PAUL N. PHILIPS Attorneys for Defendant/CounterClaimant/Appellee/Cross-Appellant, Marvin Gaye III By: /s/Martin R. Glick MARTIN R. GLICK 37420550v5 - 87 - Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 104 of 108 CERTIFICATE OF COMPLIANCE PURSUANT TO FED. R. APP. P. 32(a)(7)(C) Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), I certify that the foregoing BRIEF FOR APPELLEES AND CROSSAPPELLANTS is proportionally spaced, in a typeface of 14 points or more, and contains 19,664 words, exclusive of those materials not required to be counted under Rule 32(a)(7)(B)(iii). DATED: December 22, 2016. /s/ Martin R. Glick MARTIN R. GLICK Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 105 of 108 REQUEST FOR ORAL ARGUMENT Appellees Frankie Christian Gaye, Nona Marvisa Gaye, and Marvin Gaye III respectfully request that this Court hear oral argument in this case. Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 106 of 108 STATEMENT OF RELATED CASES Pursuant to Ninth Circuit Rule 28-2.6, Appellees state that they are not aware of any related cases pending in this Court. DATED: December 22, 2016. Respectfully, ARNOLD & PORTER LLP MARTIN R. GLICK DANIEL B. ASIMOW KING & BALLOW RICHARD S. BUSCH STEVEN C. DOUSE SARA R. ELLIS KING & BALLOW WARGO & FRENCH LLP PAUL H. DUVALL MARK L. BLOCK Attorneys for Defendants/CounterClaimants/Appellees/Cross-Appellants, Frankie Christian Gaye, Nona Marvisa Gaye LAW OFFICES OF PAUL N. PHILIPS, APLC PAUL N. PHILIPS Attorneys for Defendant/CounterClaimant/Appellee/Cross-Appellant, Marvin Gaye III By: /s/ Martin R. Glick MARTIN R. GLICK Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 107 of 108 2BD@ /* 1;DF><>86F; B< 1B@C?>6A8; 4GDEG6AF FB 0F= 1>D8G>F 5G?;E ,/)+*+&<'( ,0),&8'&,' 6A9 &-'( -,)+( -,), BD -,). >5 ?RVI6 CLMU JRTP PWUV FI UMKQIH F[ VLI EVVRTQI[ RT WQTISTIUIQVIH OMVMKEQV .71 .<<.0421 <8 <42 271 83 <42 /;523( = GITVMJ[ VLEV (04206 .99;89;5.<2 89<587)6 CLMU FTMIJ GRPSOMIU YMVL VLI OIQKVL OMPMVU SITPMVVIH F[ ?MQVL 9MTGWMV AWOI /4+.,., CLI FTMIJ MU YRTHU RT SEKIU* IZGOWHMQK VLI SRTVMRQU IZIPSVIH F[ < SEKIU* IZGOWHMQK VLI SRTVMRQU IZIPSVIH F[ MVMKEQV 4y4 Sgxzot X3 Mroiq ;EVI Jki 771 756< (&U-& SOWU V[SIH QEPI MU EGGISVEFOI JRT IOIGVTRQMGEOO[+JMOIH HRGWPIQVU) &-2=(*+)*)*,' Case: 15-56880, 12/22/2016, ID: 10244834, DktEntry: 43, Page 108 of 108 CERTIFICATE OF SERVICE Case Nos. 15-56880, 16-55089, 16-55626 I hereby certify that I electronically filed the foregoing BRIEF FOR APPELLEES AND CROSS-APPELLANTS; SUPPLEMENTAL EXCERPTS OF RECORD with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on December 22, 2016. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. /s/ Martin R. Glick MARTIN R. GLICK