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1 QUINN EMANUEL URQUHART & SULLIVAN, LLP
Kathleen M. Sullivan (Bar No. 242261)
kathleensullivan@quinnemanuel.com
2
51 Madison Avenue, 22nd Floor
3 New York, NY 10010–1601
Telephone: (212) 849 7000
4 Facsimile: (212) 849 7100
Daniel C. Posner (Bar No. 232009)
danposner@quinnemanuel.com
Alex Bergjans (Bar No. 302830)
6
alexbergjans@quinnemanuel.com
7 865 South Figueroa Street, 10th Floor
Los Angeles, California 90017–2543
8 Telephone: (213) 443–3000
Facsimile: (213) 443–3100
9
Attorneys for Plaintiff and Counter10 Defendant Pharrell Williams and CounterDefendant More Water From Nazareth
11 Publishing, Inc.
5

12

UNITED STATES DISTRICT COURT

13

CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

14 PHARRELL WILLIAMS, an
individual; ROBIN THICKE, an
15 individual; and CLIFFORD HARRIS,
JR., an individual,
16
Plaintiffs,
17
vs.
18
BRIDGEPORT MUSIC, INC., a
19 Michigan corporation; FRANKIE
CHRISTIAN GAYE, an individual;
20 MARVIN GAYE III, an individual;
NONA MARVISA GAYE, an
21 individual; and DOES 1 through 10,
inclusive,
22
Defendants.
23
24
25

CASE NO. CV13–06004–JAK (AGRx)
Hon. John A. Kronstadt, Ctrm 750
PLAINTIFF AND COUNTER–
DEFENDANT PHARRELL
WILLIAMS’ AND COUNTERDEFENDANT MORE WATER
FROM NAZARETH PUBLISHING,
INC.’S OPPOSITION TO MOTION
FOR RELIEF FROM AMENDED
JUDGMENT
Date: April 27, 2020
Time: 8:30 a.m.
Crtrm.: 750
Action Commenced: August 15, 2013

AND RELATED COUNTERCLAIMS.

26
27
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TABLE OF CONTENTS

1

Page

2

3 PRELIMINARY STATEMENT ................................................................................. 1
4 RELEVANT BACKGROUND ................................................................................... 3
5

A.

The Central And Disputed Issues At Trial.............................................. 3

6

B.

The Gayes’s Assertions At Trial About Williams’ Supposedly
Inconsistent Statements ........................................................................... 4

C.

The Court’s Denial Of The Gayes’ Motion For Attorney’s Fees ........... 6

D.

Williams’ Interview With GQ Magazine................................................ 7

7
8
9
10
11

ARGUMENT ............................................................................................................... 7
I.

12 II.
13
14
15
16
17
18
19
20
21

III.

THE GAYES’ MOTION SHOULD BE DISMISSED AS UNTIMELY
BECAUSE IT FAILS TO ALLEGE “FRAUD ON THE COURT” ................ 8
THE GAYES HAVE NOT PROVEN FRAUD ON THE COURT BY
CLEAR AND CONVINCING EVIDENCE ................................................... 13
A.

The Gayes Have Failed To Show Clear And Convincing
Evidence Of Perjury By Williams ........................................................ 13

B.

Any Supposed “Perjury” The Gayes Identified Falls Far Short Of
Fraud On The Court .............................................................................. 16

THERE IS NO BASIS TO RECONSIDER THE FEES ORDER .................. 22
A.

Cumulative Evidence Of Williams’ Alleged Lack Of Credibility
Would Not Compel A Different Result On The Fees Order ................ 22

B.

If The Fees Order Is Reconsidered, There Should Be Further
Briefing On The Reasonableness Of The Gayes’ Request ................... 25

CONCLUSION.......................................................................................................... 25

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1

TABLE OF AUTHORITIES

2

Page

3
4

CASES

5 Alexander v. Robertson,
882 F.2d 421 (9th Cir. 1989) ........................................................................... 10
6
Appling v. State Farm Mut. Auto. Ins. Co.,
340 F.3d 769 (9th Cir. 2003) ................................................................. 9, 10, 12
7
8 Cariou v. Prince,
714 F.3d 694 (2d Cir. 2013) ............................................................................ 19
9
Day v. Benton,
346 F. App’x 476 (11th Cir. 2009).................................................................. 13
10
11 Fuchs v. State Farm Gen. Ins. Co.,
2017 WL 4679272 (C.D. Cal. Mar. 6, 2017) ............................................ 11, 16
12
Gleason v. Jandrucko,
860 F.2d 556 (2d Cir. 1988) ........................................................................ 9, 11
13
14 Greiner v. City of Champlin,
152 F.3d 787 (8th Cir. 1998) ..................................................................... 21, 22
15
Haeger v. Goodyear Tire & Rubber Co.,
813 F.3d 1233 (9th Cir. 2016) ......................................................................... 12
16
17 Hazel–Atlas Glass Co. v. Hartford–Empire Co.,
322 U.S. 238 (1944) ........................................................................ 9, 10, 12, 18
18
In re Levander,
180 F.3d 1114 (9th Cir. 1999) ....................................................... 10, 16, 17, 21
19
20 In re Napster, Inc. Copyright Litig.,
479 F.3d 1078 (9th Cir. 2007) ......................................................................... 10
21
IO Grp., Inc. v. Jordan,
2010 U.S. Dist. LEXIS 61722 (N.D. Cal. May 27, 2010) .............................. 24
22
23 Lambert v. Blackwell,
387 F.3d 210 (3d Cir. 2004) ............................................................................ 14
24
Lowery v. Hart,
2016 WL 900286 (E.D. Cal. Mar. 9, 2016) .................................................... 11
25
26 Martin v. Chem. Bank,
940 F. Supp. 56 (S.D.N.Y. 1996), aff’d, 129 F.3d 114 (2d Cir. 1997) ........... 21
27
Nutrition Distribution Ltd. Liab. Co., v. PEP Research, Ltd. Liab. Co.,
2019 U.S. Dist. LEXIS 78045 (S.D. Cal. May 8, 2019) ................................. 24
28
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1 Pizzuto v. Ramirez,
783 F.3d 1171 (2015) ...................................................................................... 18
2
Pumphrey v. K.W. Thompson Tool Co.,
62 F.3d 1128 (9th Cir. 1995) ......................................................... 10, 11, 12, 18
3
4 Rimini Street, Inc. v. Oracle USA, Inc.,
139 S. Ct. 873 (2019) ...................................................................................... 25
5
Toscano v. Comm’r,
441 F.2d 930 (9th Cir. 1971) ........................................................................... 10
6
7 United States v. Beggerly,
524 U.S. 38 (1998) .......................................................................................... 10
8
United States v. Buck,
281 F.3d 1336 (10th Cir. 2002) ......................................................................... 9
9
10 United States v. Estate of Stonehill,
660 F.3d 415 (9th Cir. 2011) ............................................. 10, 11, 13, 17, 18, 21
11
United States v. Jimenez,
300 F.3d 1166 (9th Cir. 2002) ......................................................................... 13
12
13 United States v. Sainz,
772 F.2d 559 (9th Cir. 1985) ..................................................................... 13, 14
14
United States v. Sierra Pac. Indus., Inc.,
862 F.3d 1157 (9th Cir. 2017) ....................................1, 9, 10,12, 17, 20, 21, 22
15
16 United States v. Zuno-Arce,
44 F.3d 1420 (9th Cir. 1995) ........................................................................... 14
17
Williams v. Gaye,
895 F.3d 1106 (9th Cir. 2018) ..................................................................... 7, 25
18
19 Zellmer v. Nakatsu,
2014 U.S. Dist. LEXIS 181509 (W.D. Wash. Mar. 27, 2014) ................. 12, 18
20
21
22
23
24
25
26
27
28

STATUTES
Copyright Act § 505 .................................................................................................... 6
Fed. R. Civ. P. 60 ........................................................................... 8, 10, 11, 13, 21, 22
Fed. R. Civ. P. 60(b) .................................................................................................... 9
Fed. R. Civ. P. 60(b)(3) ............................................................................................... 8
Fed. R. Civ. P. 60(b)(6) ................................................................................. 1, 8, 9, 13
Fed. R. Civ. P. 60(c)(1)................................................................................................ 8
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1 Fed. R. Civ. P. 60(d)(3) ................................................................................. 1, 8, 9, 13
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1
2

PRELIMINARY STATEMENT
After years of litigation spanning summary judgment, a jury trial, and an

3 appeal to the Ninth Circuit, the Gayes largely prevailed in showing that “Blurred
4 Lines” infringes the Gayes’ copyright in Marvin Gaye’s “Got to Give it Up,” but
5 failed to prove “willful” infringement, or that they are entitled to recover their
6 attorney’s fees. More than four years after the initial judgment was entered, and
7 more than three years after entry of the order denying the Gayes’ motion for fees,
8 the Gayes now move for “relief” from the judgment to try again to recover their
9 fees. Their premise is that Williams supposedly admitted in a recent interview—
10 allegedly contrary to his trial testimony—that he actually did intend to copy “Got to
11 Give it Up,” and that had the jury been privy to this interview, it supposedly would
12 have found Williams’ infringement to be willful, and the Court supposedly would
13 have awarded the Gayes their attorney’s fees.
14

The Gayes have not come close to meeting the very heavy burden they bear to

15 demonstrate entitlement to the extraordinary relief of disturbing the finality of a
16 long-settled judgment. Their motion should be denied.
17

First, because the Gayes brought their motion more than one year after entry

18 of the order denying fees, it is untimely unless the Gayes can show that Williams’
19 alleged perjury amounts to “fraud on the court” under FRCP 60(b)(6) or 60(d)(3).
20 Fraud on the court is an exceedingly strict standard that requires far more than an act
21 of perjury, even if there were one (which there is not). Because the Gayes fail to
22 even allege any circumstances remotely satisfying that strict standard, the Gayes’
23 motion should be summarily denied as untimely.
24

Second, the Gayes’ motion fails on its merits to show any “fraud on the

25 court” because the Gayes have no clear and convincing evidence that Williams’
26 recent interview statements show he committed perjury or that he created a “grave
27 miscarriage of justice” or “harmed the integrity of the judicial process.” See United
28 States v. Sierra Pac. Indus., Inc., 862 F.3d 1157, 1167-68 (9th Cir. 2017).
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1

To begin with, there is no inconsistency between Williams’ trial testimony

2 and interview statements; Williams has always consistently denied that he intended
3 to copy “Got to Give it Up.” At trial, Williams testified that when he composed
4 “Blurred Lines,” he did not intend to copy “Got to Give it Up” or create a song that
5 sounds or feels like Marvin Gaye. In his interview, Williams said that in his
6 creative process, he often “reverse engineers” a song to “figure out where the
7 emotional mechanism is in there”—but he never said that he “reverse engineered”
8 “Got to Give it Up” to compose “Blurred Lines,” or that he entered the studio with
9 the intent to make a song that sounds or feels like Marvin Gaye. While Williams
10 did say that the “feeling” of “Blurred Lines” turned out to be so reminiscent of “Got
11 to Give it Up” that some listeners felt the songs sounded the same, he also
12 specifically stated, as he did at trial, that he had no intent to copy the elements—
13 melody, chords, and lyrics—of the song. The factual predicate for the Gayes’
14 motion therefore fails because his recent interview does not show perjury.
15

Moreover, even if the Gayes could show perjury (and they cannot), they have

16 no clear and convincing evidence of any of the additional circumstances needed for
17 perjury to rise to the level of fraud on the court, such as subornation by an officer of
18 the court or an “unconscionable plan or scheme” to mislead the court.
19

Additionally, the Gayes cannot prove that Williams’ allegedly false testimony

20 regarding whether he considered “Got to Give it Up” while creating “Blurred Lines”
21 affected the outcome of a central issue in the case. In particular, the truthfulness of
22 this testimony has no bearing on whether the songs are “substantially similar” under
23 the Ninth Circuit’s test for infringement, which the Court rightly recognized was the
24 central issue in the case. Nor does Williams’ interview bear even on the ancillary
25 question of “willful” infringement, because Williams made clear in his interview, as
26 at trial, that he never intended to copy “Got to Give it Up.”
27

Finally, the Gayes cannot show fraud on the court because their supposed

28 “newly discovered evidence” of Williams’ alleged perjury is actually old news, and
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1 plainly does not significantly change the picture already drawn by previously
2 available evidence, as required for fraud on the court to exist. Indeed, the Gayes
3 already made Williams’ alleged perjury a focal point of their case at trial and in their
4 motion for fees, including Williams’ allegedly inconsistent pre-trial interview
5 statements that they argue are substantially the same as his post-judgment interview
6 statements on which they rely now.

The recent interview is thus cumulative

7 evidence at best, which is insufficient to show fraud on the court.
8

Third, no matter how Williams’ interview is construed, the motion should be

9 denied because it does not affect the “integrity” of the Court’s order denying the
10 Gayes’ motion for fees (“Fees Order”).

In denying fees, the Court gave due

11 consideration to all the factors relevant to a prevailing party’s entitlement to fees,
12 including the extent of the Gayes’ success, whether a fee award would serve the
13 purposes of the Copyright Act, and whether Williams’ litigation positions were
14 unreasonable, including in consideration of his supposedly inconsistent statements.
15 As the Court recognized at the time, the credibility of Williams’ testimony on a non16 central issue has minimal bearing on the appropriateness of fees—and to the extent
17 it is relevant at all, the Court already considered it in declining to award fees. The
18 Gayes’ presentation of cumulative evidence of Williams’ alleged lack of credibility
19 does not warrant a different result. The Gayes’ motion fails for this reason too.
RELEVANT BACKGROUND

20
21

A.

The Central And Disputed Issues At Trial

22

The trial in this case was about whether “Blurred Lines” infringes the Gayes’

23 copyright in “Got to Give it Up.” That question turned on whether the songs are
24 substantially similar under the Ninth Circuit’s test for evaluating infringement.
25

To assess substantial similarity, the jury was asked to follow Instruction 43,

26 which explained the Gayes’ burden to prove “extrinsic similarity” by showing the
27 two works “have a similarity of ideas and expression as measured by external,
28 objective criteria,” and “intrinsic similarity” by showing that “an ordinary,
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1 reasonable listener would conclude that the total concept and feel” of the works are
2 “substantially similar.” (Dkt. 322 at 46.)
3

The jury was also asked to apply Instruction 39 (Dkt. 322 at 42) to decide

4 whether the infringement was willful, as follows:

7

An infringement is considered willful when the Gaye Parties have
proved both of the following elements by a preponderance of the
evidence: (1) the Thicke Parties engaged in acts that infringed the
copyright; and (2) the Thicke Parties knew that those acts infringed the
copyright.

8

B.

5
6

9
10

The Gayes’s Assertions At Trial About Williams’ Supposedly
Inconsistent Statements

Although the central dispute at trial was whether “Blurred Lines” and “Got to

11 Give it Up” are substantially similar based on “extrinsic” and “intrinsic” similarities,
12 the Gayes nevertheless focused much of their case on Williams’ and Robin Thicke’s
13 alleged lack of credibility. In their opening statement, the Gayes described Williams
14 and Thicke as “professional performers” who made statements to the press about the
15 creation of “Blurred Lines” that contradicted their sworn deposition testimony. (Ex.
16 1, Trial Day 1 PM Tr. at 25-41; 44-47.)1 The Gayes played video of Williams’ and
17 Thicke’s deposition testimony alongside allegedly inconsistent public statements
18 they made before trial. (See, e.g., id. at 28:7-18 (“I will prove to you, however, that
19 when he was doing interviews, discussing ‘Blurred Lines’ outside of this case,
20 Williams said the exact opposite. He said he did try to take the feeling ‘Got To Give
21 It Up’ gave him and he did think of ‘Got To Give It Up.’”); 30:22-31:2 (“Thicke’s
22 testimony is very different than what he said before…The evidence will show that
23 this story has changed multiple times, including changing in this very case.”).)
24

On cross-examination, the Gayes tried to impeach Williams’ testimony that

25 he did not channel Gaye when composing “Blurred Lines” with his pre-lawsuit
26
27

1

Unless otherwise indicated, all exhibits are attached to the Declaration of
28 Daniel C. Posner.
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1 statement in an interview that “I was trying to pretend that I was Marvin Gaye and
2 what he would do had he went down to Nashville and did a record with pentatonic
3 harmonies.” (Ex. 4, Trial Day 6 PM Tr. 135:18-137:3.) The Gayes also tried to
4 impeach Williams’ testimony that he did not enter the studio with the intent to create
5 anything that felt or sounded like Gaye with Williams’ pre-trial statements in a press
6 junket that “Blurred Lines” was “totally” inspired by Gaye and that he “tried to take
7 the feeling that ‘Got to Give it Up’ gave me.” (Id. at 137:4-21; Ex. 6.) The Gayes
8 also cross-examined Thicke on the inconsistencies between his testimony and press
9 statements (Ex. 2, Trial Day 2 AM Tr. 91:21-93:25; 97:5-18), and between his
10 testimony and interrogatory responses (Ex. 3, Trial Day 2 PM Tr. 7:20-11:7).
11

The Gayes again emphasized Williams’ and Thicke’s alleged inconsistent

12 statements and lack of credibility in their closing argument. Based on their pre13 lawsuit interviews, the Gayes repeatedly argued that Williams and Thicke made
14 false statements in their testimony:
15
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 “But when this dispute arose, Mr. Williams and Mr. Thicke began a
campaign of changing their testimony and statements nearly every time
they spoke about it.” (Ex. 5, Trial Day 7 PM Tr. 83:12-14.)
 “And Mr. Williams went from saying that he pictured himself as
Marvin Gaye when creating ‘Blurred Lines,’ not anyone else, and that
he took the feeling that ‘Got to Give it Up’ gave him to saying that
neither Marvin Gaye nor ‘Got to Give it Up’ ever crossed his mind
when creating ‘Blurred Lines.’” (Id. at 83:22-84:1.)
 “They were dishonest from the time this matter started and even in this
trial. They kept changing their stories time and time and time again.
They gave a sworn, written answer to questions and then changed their
answer when they got in their deposition. Mr. Williams said one thing
in his deposition and something that you cannot reconcile outside of his
deposition when he was interviewed and gave print interviews.” (Id. at
95:24-96:7.)
 “And as I told you in my opening statement, keep in mind at all times,
these people are professional performers.” (Id. at 89: 21-23.)
And in rebuttal, the Gayes explicitly argued that Williams and Thicke made
false statements under oath:
 “[L]et me tell you something else about how I see this. You can’t sit
there and say one thing one time when you’re asked and another thing
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another time that you’re asked and another thing another time that
you’re asked and then…be upset that people doubt your credibility.
Telling the truth is important in life.” (Id. at 127:7-12.)
 “And so what they’re basically saying, what it boils down to is: Yes,
we copied, yes, we took it, yes, we lied about it, yes, we changed our
story every time.” (Id. at 129:21-23.)
 “But they also didn’t tell the truth when they were under oath.” (Id. at
130:7-10.)
 “[A]re you going to believe Robin Thicke, who has admittedly told us
all that he is not an honest person? Or are you going to believe Pharrell
Williams, who I showed you said different things about the creation of
‘Blurred Lines’ when he was asked at different times?…But what is
important is people have to be held responsible for their actions. And
honesty means something. And telling the truth means something.”
(Id. at 131:10-18.)
The jury found infringement, but no willful infringement, and awarded $7.37

12 million in damages. (Dkt. 320 at 2.) Judgment was entered on December 2, 2015.
13

C.

The Court’s Denial Of The Gayes’ Motion For Attorney’s Fees

14

Following trial, the Gayes moved to recover their attorney’s fees as the

15 prevailing party under Section 505 of the Copyright Act. (Dkt. 479-1.) In arguing
16 that Williams’ and Thicke’s litigation positions were unreasonable, the Gayes again
17 focused on their alleged false testimony regarding whether they intended to create a
18 song like “Got to Give it Up”—devoting a full three pages to the issue. (Id. at 9-12.)
19

On April 12, 2016, the Court denied the Gayes’ motion for fees. (Dkt. 554.)

20 The Court rejected the Gayes’ argument that Williams’ and Thicke’s alleged lack of
21 credibility based on their allegedly inconsistent pretrial statements established that
22 their litigation positions were objectively unreasonable, stating:

“Although the

23 pre-litigation statements that are inconsistent with ones made under oath may go to
24 the credibility of the witness, this does not make this pattern of conduct objectively
25 unreasonable.” (Dkt. 554 at 9.) The Court also noted that the statements did not
26 “necessarily concern the ultimate legal question submitted to the jury—whether
27 there was a substantial similarity between two musical works.” (Id.)
28
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1

The Ninth Circuit affirmed the judgment in part, including the denial of fees

2 and costs.

Williams v. Gaye, 895 F.3d 1106, 1132-33 (9th Cir. 2018).

On

3 December 6, 2018, the Court entered an amended judgment. (Dkt. 573.)
4

D.

Williams’ Interview With GQ Magazine

5

On November 4, 2019, GQ Magazine published an interview that Williams

6 had given with producer Rick Rubin.

(See Busch Decl. (Dkt. 577-3), Ex. A

7 (https://www.gq.com/video/watch/epic-conversations-pharrell-and-rick-rubin-have8 an-epic-conversation); Ex. 7 (Interview Transcript).) The interview, which spans
9 almost an hour, broadly covers Williams’ musical preferences and his creative
10 process for producing music.

When the discussion turned to “Blurred Lines,”

11 Williams repeatedly denied having any intent to copy “Got to Give it Up” or Gaye,
12 and expressed dismay that the jury had found the songs to be substantially similar,
13 while also acknowledging how the jury could have been led to find infringement
14 based on the similar “feel” of the songs. (Busch Ex. A at 30:27; Ex. 7 at 16:12-16.)
15 As Williams and Rubin noted, however, “you can’t copyright a feeling.” (Busch Ex.
16 A at 28:30–28:58; 30:48–32:17; Ex. 7 at 15:16-24; 16:12-17:12.)
17

The Gayes filed this motion on December 6, 2019, arguing that other

18 statements Williams made in his post-judgment interview show that he had
19 supposedly perjured himself at trial by giving the same testimony that they had
20 argued at trial and in their motion for fees was untruthful based on Williams’ pre21 lawsuit interviews.
22
23

ARGUMENT
The Gayes’ motion for relief is meritless and should be denied. The predicate

24 for the motion is that new evidence supposedly shows that Williams perjured
25 himself at trial by denying that he considered Gaye or “Got to Give it Up” while
26 creating “Blurred Lines,” and that this “perjury” amounts to “fraud on the court,”
27 such that the Gayes are entitled to relief from the Court’s order denying the Gayes’
28 motion for attorneys’ fees. Every aspect of the Gayes’ motion fails.
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1

First, this motion should be summarily rejected because it is untimely. Even

2 if Williams’ post-judgment interview statements were inconsistent with Williams’
3 trial testimony (and they are not), the Gayes fail to allege the circumstances
4 necessary to amount to “fraud on the court.” Accordingly, the Gayes have no basis
5 to avail themselves of Rules 60(d)(3) or 60(b)(6), pursuant to which a motion for
6 relief may be raised at any reasonable time. Because, as the Gayes concede, their
7 motion is untimely under any other Rule that may apply, the motion must be denied.
8

Second, even if the Gayes had plausibly alleged “fraud on the court” (and

9 they have not), they cannot meet the exceedingly difficult standard of proving fraud
10 on the court by clear and convincing evidence. There is no clear and convincing
11 evidence of any perjury at all, let alone an “unconscionable plan or scheme” to
12 “improperly influence” the court, nor any evidence that the jury or this Court were
13 “improperly influenced” by the alleged perjury in rendering their decisions on issues
14 central to the case.
15

Third, even if the Gayes had alleged and shown fraud on the Court (and they

16 have not), the Gayes still have not shown they are entitled to the relief they seek in
17 the form of an attorney’s fees award. The “new” evidence of Williams’ post18 judgment statements on which the Gayes rely is cumulative of evidence the Court
19 already considered in deciding that fees are not warranted, and, just as it was before,
20 is of limited relevance, at best, to that question. There is no basis to reach a
21 different result even if the Gayes’ supposed “new evidence” is considered.
22 I.
23
24
25
26
27
28

THE GAYES’ MOTION SHOULD BE DISMISSED AS UNTIMELY
BECAUSE IT FAILS TO ALLEGE “FRAUD ON THE COURT”
As a threshold matter, the Gayes’ motion is untimely because the Gayes fail

to even allege a plausible fraud on the court.
A Rule 60 motion for relief based on evidence of “fraud…by an opposing
party” must be brought “no more than a year after the entry of the judgment or order
or the date of the proceeding.” See Fed. R. Civ. P. 60(b)(3), 60(c)(1). The Gayes
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1 concede (Opp. at 4-5 n.2) that such a motion would be time-barred because the order
2 from which they seek post-judgment “relief”—the Court’s April 12, 2016 Order
3 denying the Gayes’ motion for attorneys’ fees—was entered more than one year
4 before the Gayes filed this motion.
5

To avoid a time bar, the Gayes purport to bring their motion under Rules

6 60(b)(6) and 60(d)(3), which permit motions for relief from a judgment “within a
7 reasonable time,” and an independent action at any time, upon the far narrower and
8 more difficult showing of “fraud on the court.” See Gleason v. Jandrucko, 860 F.2d
9 556, 558-59 (2d Cir. 1988) (“Although both clause (3) and the saving provision of
10 Rule 60(b) provide for relief from a judgment on the basis of fraud, the type of fraud
11 necessary to sustain an independent action attacking the finality of a judgment is
12 narrower in scope than that which is sufficient for relief by timely motion.”).2 This
13 is an exceedingly difficult standard to meet, and as shown below, the Gayes have
14 failed to come close to doing so.
15

“A court’s power to grant relief from judgment for fraud on the court stems

16 from ‘a rule of equity to the effect that under certain circumstances, one of which is
17 after-discovered fraud, relief will be granted against judgments regardless of the
18 term of their entry.’” Sierra Pac. Indus., 862 F.3d at 1167 (quoting Hazel–Atlas
19 Glass Co. v. Hartford–Empire Co., 322 U.S. 238, 244 (1944)). However, “‘out of
20 deference to the deep–rooted policy in favor of the repose of judgments,’… relief
21 from judgment for fraud on the court is ‘available only to prevent a grave
22 miscarriage of justice.’” Id. (emphasis added) (quoting Hazel–Atlas Glass, 322
23
24
25
26
27
28

2

The Gayes also move under the Court’s inherent power, likely to avoid Rule
60(d)(3)’s requirement that an independent action (and not a motion) be brought to
set aside a judgment. See Appling v. State Farm Mut. Auto. Ins. Co., 340 F.3d 769,
780 (9th Cir. 2003); United States v. Buck, 281 F.3d 1336, 1341-42 (10th Cir. 2002)
(distinguishing between an independent action under Rule 60 and the inherent
power of the court to set aside a judgment for fraud on the court). The Gayes are
subject to the same exacting standards and high burden to prove fraud on the court
under the Court’s inherent powers, Buck, 281 F.3d at 1342, so this motion fails to
the same extent.
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1 U.S. at 244, and United States v. Beggerly, 524 U.S. 38, 47 (1998)); see Toscano v.
2 Comm’r, 441 F.2d 930, 934 (9th Cir. 1971) (“‘fraud on the court’ should be read
3 narrowly, in the interest of preserving the finality of judgments, which is an
4 important legal and social interest”).
5

Guided by these principles, the Ninth Circuit has “emphasized that ‘not all

6 fraud is fraud on the court.’” Sierra Pac. Indus., 862 F.3d at 1167 (quoting In re
7 Levander, 180 F.3d 1114, 1119 (9th Cir. 1999)). Rather, “fraud on the court”
8 applies only to “that species of fraud which does or attempts to, defile the court
9 itself, or is a fraud perpetrated by officers of the court so that the judicial machinery
10 cannot perform in the usual manner its impartial task of adjudging cases that are
11 presented

for

adjudication.”

United

States

v.

Estate

of

Stonehill,

12 660 F.3d 415, 444 (9th Cir. 2011). The relevant inquiry for finding fraud on the
13 court “is not whether fraudulent conduct ‘prejudiced the opposing party,’ but
14 whether it ‘harm[ed] the integrity of the judicial process.” Id. (quoting Alexander v.
15 Robertson, 882 F.2d 421, 424 (9th Cir. 1989)).
16

Fraud on the court must be an “‘intentional, material misrepresentation,’” and

17 “‘must involve an unconscionable plan or scheme which is designed to improperly
18 influence the court in its decision.’” Sierra Pac. Indus., 862 F.3d at 1168 (citing In
19 re Napster, Inc. Copyright Litig., 479 F.3d 1078, 1097 (9th Cir. 2007), and
20 Pumphrey v. K.W. Thompson Tool Co., 62 F.3d 1128, 1131 (9th Cir. 1995)). “A
21 finding of fraud on the court is reserved for material, intentional misrepresentations
22 that could not have been discovered earlier, even through due diligence.” Id. at
23 1169. If the moving party knew or “through due diligence could have discovered”
24 the alleged fraud or misrepresentation prior to the entry of judgment, it is barred
25 from relief under Rule 60. Appling, 340 F.3d at780.
26

Moreover, the “relevant misrepresentations must go ‘to the central issue in the

27 case, . . . and must ‘affect the outcome of the case.’” Sierra Pac. Indus., 862 F.3d at
28 1168 (quoting Estate of Stonehill, 660 F.3d at 448, 452). “In other words, the newly
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1 discovered misrepresentations must ‘significantly change the picture already
2 drawn by previously available evidence.’” Id. (quoting Estate of Stonehill, 660 F.3d
3 at 435) (emphasis added). “In that vein, mere nondisclosure of evidence is typically
4 not enough to constitute fraud on the court, and perjury by a party or witness, by
5 itself, is not normally fraud on the court unless it is so fundamental that it
6 undermined the workings of the adversary process itself.” Id. (internal quotations
7 omitted) (noting that “perjury may constitute fraud on the court if it involves, or is
8 suborned by, an officer of the court”); see, e.g., Fuchs v. State Farm Gen. Ins. Co.,
9 2017 WL 4679272, at *9 (C.D. Cal. Mar. 6, 2017) (“only the most serious
10 misconduct, such as bribery of a judge or fabrication of evidence by counsel, will
11 amount to fraud on the court. Without more, neither the failure to disclose evidence,
12 nor perjury by a party or witness, is sufficient.”); Lowery v. Hart, 2016 WL 900286,
13 at *4 (E.D. Cal. Mar. 9, 2016) (“The Ninth Circuit has repeatedly held that perjury
14 by a witness alone cannot amount to fraud on the court.”); Gleason, 860 F.2d at 560
15 (2d Cir. 1988) (“In short, neither perjury nor nondisclosure, by itself, amounts to
16 anything more than fraud involving injury to a single litigant.”).
17

Under this exceptionally strict standard, courts have found fraud on the court

18 only in limited and extreme circumstances that are not remotely applicable here.
19 For example, in all but one of the cases cited by the Gayes where fraud on the court
20 was found, the courts found clear and convincing evidence that an officer of the
21 court—not simply a party or witness—actively engaged in misconduct that led to a
22 miscarriage of justice:
23
24
25
26
27
28

 In Pumphrey, the defendant’s general counsel knowingly drafted false
discovery responses, suborned the presentation of false evidence, and
allowed an expert witness to repeatedly give false testimony regarding
whether a gun accidentally fired while the defendant and its expert
filmed a test video for trial. 62 F.3d at 1131-33.
 In Haeger v. Goodyear Tire & Rubber Co., which did not involve Rule
60 but rather discovery sanctions, Goodyear’s counsel acted in bad
faith by knowingly withholding responsive discovery, making
misrepresentations to the court regarding their compliance with
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discovery obligations, and leveraging their discovery fraud to gain a
tactical advantage. 813 F.3d 1233, 1238-40 (9th Cir. 2016).

1
2

 In Zellmer v. Nakatsu, the defendants submitted false declarations
regarding the timing of certain events that were directly contradicted by
log books and incident reports in counsel’s possession “since day one.”
2014 U.S. Dist. LEXIS 181509, at *35 (W.D. Wash. Mar. 27, 2014).

3
4

 And in Hazel-Atlas, the plaintiff’s attorneys paid a witness $8,000 to lie
that he was the sole author of a false article written with the plaintiff’s
counsel. Hazel-Atlas, 322 U.S. at 241–244. In other words, officers of3
the court created false evidence and then paid a witness to cover it up.

5
6
7
8

In each of these cases, there was clear and convincing evidence that officers

9 of the court presented or encouraged the presentation of provably false factual
10 information that they knew to be false at the time of disclosure. In sharp contrast,
11 the Gayes do not come close to even alleging a plausible fraud on the court. To the
12 contrary, even crediting the Gayes’ (baseless) argument that Williams’ recent
13 interview shows that he perjured himself by testifying that he did not “intend” to
14 make a song that sounded like “Got to Give it Up,” or that he did not consider Gaye
15 “at any time while creating ‘Blurred Lines’” (see Mot. at 7), this alleged perjury
16 would not amount to fraud on the court for many reasons, including because
17 (i) there is no allegation (let alone evidence) that the perjury was suborned by an
18 officer of the court, or part of an “unconscionable plan or scheme,” Pumphrey, 62
19 F.3d at 1131-33; (ii) the post-judgment interview statements do not “significantly
20 change the picture already drawn by” evidence previously available to the court—
21 including pre-lawsuit statements that were a focal point of the Gayes’ trial
22 presentation, see Sierra Pac. Indus., 862 F.3d at 1168; (iii) the statements do not
23 relate to or change the outcome of the central issue in the case regarding whether
24 “Blurred Lines” and “Got to Give it Up” are “substantially similar,” id.; and (iv) the
25
26

3

As explained in detail below, infra II.B., the facts of Levander, the only case the
Gayes
cite that did not involve misconduct by an officer of the court, are far more
27
egregious than here. 180 F.3d at 1117.
28
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1 Gayes already had the opportunity to expose the alleged perjury at trial, see Appling,
2 340 F.3d at 780, making the new evidence cumulative at best.
3

Accordingly, because the Gayes have no proper basis to avail themselves of

4 Rules 60(b)(6) and 60(d)(3), and their motion would be untimely if brought under
5 any other available Rule, their motion should be denied. See Day v. Benton, 346 F.
6 App’x 476, 479 (11th Cir. 2009) (affirming dismissal of Rule 60 motion as untimely
7 as harmless where “the record [did] not reflect the essential elements necessary to
8 bring” an action to set aside a judgment for fraud on the court). This Court should
9 reject their attempted reliance on these exacting rules as a device to avoid a time bar.
10 II.
11
12

THE GAYES HAVE NOT PROVEN FRAUD ON THE COURT BY
CLEAR AND CONVINCING EVIDENCE
If the Court reaches the merits of the Gayes’ motion, it still should still deny it

13 because the Gayes have not come close to proving fraud on the court by the
14 requisite “clear and convincing evidence.” See Estate of Stonehill, 660 F.3d at 445.
15
16
17

A.

The Gayes Have Failed To Show Clear And Convincing Evidence
Of Perjury By Williams

Contrary to the Gayes’ assertions (Mot. at 7-9), Williams’ recent interview

18 does not show that he perjured himself in any way. The interview is entirely
19 consistent with his testimony that (i) he did not intend to make a song that felt or
20 sounded like Gaye or “Got to Give it Up”; (ii) “Got to Give it Up” did not cross his
21 mind when he was creating “Blurred Lines”; and (iii) he and Thicke did not discuss
22 making a song that “emulate[d] the groove or style of Marvin Gaye.”
23

To establish perjury, the Gayes must prove that Williams (i) gave false

24 testimony under oath, (ii) concerning a material matter, (iii) with the willful intent to
25 provide false testimony, rather than as a result of confusion, mistake, or faulty
26 memory. United States v. Jimenez, 300 F.3d 1166, 1170 (9th Cir. 2002). Williams’
27 statements must be read and considered in their entire context, because “lifting
28 statements uttered by a witness out of context can serve no useful purpose in
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1 advancing the truth–seeking role of the perjury statutes.”

See United States v.

2 Sainz, 772 F.2d 559, 562 (9th Cir. 1985). Proving falsity also requires the fine
3 parsing of unambiguous answers to “precise questioning.” Id. at 564 (“a literally
4 true answer, even though unresponsive or ‘shrewdly calculated to evade,’ cannot
5 form the predicate for a perjury conviction”). The Gayes cannot establish falsity by
6 simply showing that Williams’ interview statements are inconsistent with his
7 testimony. See United States v. Zuno-Arce, 44 F.3d 1420, 1423 (9th Cir. 1995); see
8 also Lambert v. Blackwell, 387 F.3d 210, 249 (3d Cir. 2004) (“Discrepancy is not
9 enough to prove perjury. There are many reasons testimony may be inconsistent;
10 perjury is only one possible reason.”).
11

Under this standard, the Gayes fail to show clear and convincing evidence of

12 perjury. None of the six “quotes” the Gayes plucked from the hour-long interview
13 shows that Williams’ testimony was intentionally “false.” In particular, Williams
14 never stated, contrary to his testimony, that (i) he did intend to make a song that felt
15 or sounded like Gaye or “Got to Give it Up”; (ii) that “Got to Give it Up” did cross
16 his mind when he recorded “Blurred Lines”; or (iii) that he did discuss with Thicke
17 making a song that “emulate[d] the groove or style of Marvin Gaye.”
18

Specifically, “Quotes 1 and 2” that the Gayes identify (Mot. at 10-11) do not

19 refer to “Blurred Lines,” Gaye or “Got to Give it Up” at all. Moreover, taken in
20 context, it is clear that Williams was referring to “channeling” the artists whose
21 works he produces (such as Thicke in the context of “Blurred Lines”)—not artists
22 who he tries to copy when recording a song.

Nor did Williams say he ever

23 “channeled” Gaye, while creating “Blurred Lines” or otherwise.
24

“Quotes 3–5” likewise do not mention Marvin Gaye or “Got to Give it Up.”

25 Again, Williams is speaking generally about his creative process, and never says,
26 contrary to his trial testimony, that he intended to make a song that feels like Gaye
27 or “Got to Give it Up,” that he thought about Gaye or his song at any time while
28 creating “Blurred Lines,” or that he discussed Gaye with Thicke at the time. At
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1 most, Williams acknowledges that “Blurred Lines” turned out to “feel” similar to a
2 prior song that had “[done] something to [him] emotionally,” to the point that some
3 people “hear[d] the same thing.” But in the same breath, Williams emphasized that
4 he did not try to make the songs “look” the same and that they are nothing alike,
5 apart from their similar “feeling”—which is all fully consistent with his trial
6 testimony. (See, e.g., Ex. 4, Day 6 PM Trial Tr. at 128:15-21).
7

Finally, “Quote 6” also does not mention Gaye or “Got to Give it Up” (or

8 even “Blurred Lines”), but just addresses what Williams does when he comes across
9 a song whose “feeling” he wants to remember—namely, “to listen to it over, and
10 over, and over again, and really understand what I’m feeling—and why I feel that
11 way.”

Plainly nothing about those sentiments is inconsistent with Williams’

12 testimony about his process for creating “Blurred Lines.”4
13

When taken in context of the full hour-long interview, it is clear that one thing

14 Williams did not do is admit to having copied, or intended to copy, “Got to Give it
15 Up” while creating “Blurred Lines.” To the contrary, he agreed that prior to this
16 litigation, he and other musicians “had an understanding [that] a song is…the
17 chords, the melody, and the words…” (Busch Ex. A at 30:48-31:19; Ex. 7 at 16:2118 25.) He also agreed that “Blurred Lines’” “chords,” “melody,” and “words” did not
19 have “anything to do” with “Got to Give it Up.” (Id. at 31:24-31:32; see also id. at
20 30:06-30:12 (“Like I really made it feel so much like it that people were like, oh, I
21 hear the same thing…And it’s like, nah, look at the notes.”); Ex. 7 at 16:21-25;1222 16.) In fact, Williams stated that the jury verdict “hurt my feelings” because “I
23 would never take anything from anyone.” (Busch Ex. A at 28:52-28:57; Ex. 7, 16:224 3) This is a far cry from the Gayes’ argument that the interview is an admission that
25

4

“Quote 6” was actually stated at the beginning of the interview, half an hour
before
Williams even referenced “Blurred Lines.” The Gayes misleadingly pick it
26
out of context and present it in their brief immediately after the discussion of
27 “Blurred Lines” to suggest that these statements refer to “Blurred Lines” or “Got to
Give it Up.” (Mot. at 11-12.) They do not.
28
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1 the infringement was “deliberate and willful.” (Compare Mot. at 24 with id.) Read
2 in its entirety, the interview is consistent with Williams’ testimony that he did not
3 copy “Got to Give it Up,” deliberately or otherwise, and it fails to show any perjury.
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

B.

Any Supposed “Perjury” The Gayes Identified Falls Far Short Of
Fraud On The Court

Even if Williams’ November 2019 interview statements could be construed as
establishing the falsity of his trial testimony (and they cannot), any such “perjury”
would still fall far short of amounting to fraud on the court sufficient to justify relief
from judgment.
First, “perjury by a party or witness, by itself, is not normally fraud on the
court.” Levander, 180 F. 3d. at 1119. Courts routinely reject claims of fraud on the
court based on far stronger evidence of perjury than the interview quotes culled by
the Gayes here. See, e.g., Estate of Stonehill, 660 F.3d at 448 (no fraud on the court
based on perjury despite documents conclusively proving witness lied in
deposition).
The Gayes hang their motion on Levander, the only case they can cite where
perjury alone constituted fraud on the court, but they mischaracterize its holding and
impact on the law in the Ninth Circuit. (See Mot. at 17, n. 7.) As an initial matter,
the court in Levander did not “affirmatively reject” the general rule that perjury by
itself is not fraud on the court; it simply distinguished situations where (as here) the
alleged perjury is not fraud on the court because it could have been uncovered prior
to judgment, from situations (as in Levander) where perjury could be fraud on the
court because it could not previously be discovered. Levander, 180 F.3d at 1120.
No court has read Levander as broadly as the Gayes do. In fact, the first case the
Gayes cite in support of this argument states the opposite. See Fuchs, 2017 WL
4679272, at *9-10 (representations contradicted by testimony are not fraud on the
court). And the Ninth Circuit has continued to make clear, post-Levander, that
perjury alone is not normally fraud on the court. See, e.g., Estate of Stonehill, 660
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1 F.3d 415 (“[P]erjury by a party or witness, by itself, is not normally fraud on the
2 court.”) (citing Levander, 180 F.3d at 1120).
3

Levander is also easily distinguishable on its facts. There, a corporate officer

4 categorically denied in deposition that his company assets had been sold when, in
5 fact, they were previously transferred to 19 different corporate entities as part of a
6 scheme. 180 F.3d. at 1117. The officer’s testimony about an objective, provable
7 fact—whether any assets had been sold—was clearly and convincingly proven to be
8 false by direct and objective evidence. Here, in contrast, the evidence of any alleged
9 perjury is far more attenuated, showing at most that Williams’ testimony about his
10 recollection of his state of mind while creating “Blurred Lines” years before he
11 testified may be inconsistent with cherry-picked quotes from an interview he gave
12 years after he testified describing his general songwriting process.

More

13 importantly, the Ninth Circuit only found fraud on the court in Levander because
14 neither the moving party nor court had any way to know that the officer’s testimony
15 was false at the time judgment was entered. Id. at 1120. Here, the Gayes, Court,
16 and jury all knew at trial that Williams had made pre-lawsuit statements about
17 “channeling” Gaye and taking “the feeling” of “Got to Give it Up” that were
18 allegedly inconsistent with his testimony. (Ex. 4 Trial Day 6 PM Tr. at 135:1819 137:10.) Thus, even if Williams’ recent interview showed “perjury” (it does not), it
20 does not provide clear evidence of fraud on the court.
21

Second, Williams’ alleged perjury is “itself” insufficient to amount to fraud

22 on the court because it plainly did not “affect the outcome of the case” or
23 “undermine the workings of the adversary process.” Sierra Pac. Indus., 862 F.3d at
24 1168. To the contrary, despite any alleged perjury, the Gayes were not “thwarted”
25 at trial (Mot. at 10), but instead prevailed and were awarded substantial damages.
26 Nor is there any allegation (nor could there be) that the alleged perjury involves an
27 “officer of the court” or was part of an “unconscionable plan or scheme which is
28 designed to improperly influence the court in its decision.” See id. Attempting to
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1 meet that standard, the Gayes strain to argue (see Mot. at 6-9) that Williams’
2 allegedly untrue trial testimony was a “coordinated” effort with Thicke to change
3 their testimony from their pre-trial statements that they allegedly discussed making a
4 song like “Got to Give it Up,” to their trial testimony that they actually did not. As
5 an initial matter, this argument fails because there is no inconsistency between
6 Williams’ November 2019 interview statements and Thicke’s (or Williams’) trial
7 testimony that they did not discuss making a song like “Got to Give it Up”; in his
8 November 2019 interview, Williams does not say anything at all about what he
9 discussed with Thicke while creating “Blurred Lines.”
10

And even if there were any inconsistency (and there is not), the Gayes’

11 argument that the allegedly untruthful trial testimony of Williams and Thicke must
12 have resulted from “thought, discussion, and planning” is speculative and based on
13 no evidence. See Pizzuto v. Ramirez, 783 F.3d 1171 (2015) (no fraud on the court
14 where moving party lacked specific evidence of scheme but “relie[d] instead on a
15 series of allegations and implications.”). And again, the Gayes’ speculation about
16 coordination between Williams and Thicke is a far cry from the type of evidence of
17 an “unconscionable plan or scheme” courts have required to find perjury amounting
18 to fraud on the court. Unlike in Pumphrey or Hazel-Atlas, for example, there is no
19 evidence that counsel for Williams and Thicke had personal knowledge of any
20 perjury, manufactured evidence, or paid witnesses to lie. See Pumphrey, 62 F.3d at
21 1131-33 (officer of the court had personal knowledge of fraud, perjury, and false
22 evidence); Hazel-Atlas, 322 U.S. at 241-244 (officer of the court paid witness to lie
23 in effort to conceal that counsel wrote a false article). Nor is there evidence, as in
24 Zellmer, that any officer of the court submitted perjured testimony despite having
25 evidence proving its falsity. See 2014 U.S. Dist. LEXIS 181509, at *35.
26

In fact, the Ninth Circuit has rejected claims for fraud on the court based on

27 stronger evidence than the speculation offered by the Gayes here. See, e.g., Estate
28 of Stonehill, 660 F.3d at 445–448 (finding no fraud on the court despite evidence of
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1 perjury and evidence that government attorneys withheld relevant documents and
2 misled the court regarding those documents).
3

Third, Williams’ allegedly untruthful trial testimony is not fraud on the court

4 because it does not relate to the “central issue” in the case. As this Court rightly
5 recognized in the Fees Order, the central issue was “whether there was a substantial
6 similarity between two musical works”—not whether “Thicke told Williams that he
7 would like to create a song that evoked the musical era of ‘Got to Give it Up.’”
8 (Dkt. 554 at 9.) As further shown by the jury instruction on “substantial similarity”
9 (Dkt. 322 at 46 (Instruction No. 43)), neither Williams’ credibility generally, nor the
10 more specific question of whether he “considered” Gaye while creating “Blurred
11 Lines,” had any bearing on whether the two songs are substantially similar. (See
12 Dkt. 554 at 9 (citing Cariou v. Prince, 714 F.3d 694, 707 (2d Cir. 2013) (“What is
13 critical is how the work in question appears to the reasonable observer, not simply
14 what an artist might say about a particular piece or body of work.”).)
15

Nor was Williams’ “willfulness” the “central issue” in the case. And even if

16 it were, Williams’ post-judgment interview is not probative of willfulness either. As
17 the jury was instructed here, copyright infringement is “willful” if the defendant
18 engaged in acts of copyright infringement and “knew that those acts infringed the
19 copyright.”

(Dkt. 322 at 42 (Instruction No. 39.))

Whatever Williams’ post-

20 judgment interview statements may show, they do not, under any plausible
21 construction, show that he “knew” he was infringing the Gayes’ copyright while
22 creating “Blurred Lines.” To the contrary, Williams stated repeatedly during that
23 interview, consistent with every other statement he has ever made, that he never
24 intended to infringe, or understood that he was infringing, any copyright in “Got to
25 Give it Up.” (See, e.g., Busch Ex. A at 28:54-29:02, Ex. 7 at 15:22-26 (“Rubin: The
26 song is nothing like the song. Williams: Nope, but the feeling was. Rubin: Yeah
27 but the feeling is not something that you can copyright. Williams: No, you can’t
28 copyright a feeling”); 31:24-32:17, Ex. 7 at 16:21- 17:14 (“Rubin: And your chords,
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1 your melody and your words, none of them had anything to do…Williams: Nope.
2 Rubin: So— Williams: It was just a feeling…you can’t copyright a feeling”).)
3 Williams’ interview statements thus have no direct bearing on any “central issue in
4 this case,” and they fail to support a plausible allegation of fraud on the court for
5 this reason too.
6

Fourth, the Gayes cannot show that Williams’ post-judgment interview

7 statements “significantly change the picture already drawn by previously available
8 evidence.’” Sierra Pac., 862 F.3d at 1171. Although the Gayes protest that they
9 were “shock[ed]” by the interview (Mot. at 10), they had already made Williams’
10 allegedly inconsistent pre-lawsuit interview statements a focal point, if not the
11 primary focus, of their presentation of evidence at trial and in support of their
12 motion for fees (see supra at 4-6). And if anything, those pre-lawsuit statements go
13 further than the post-judgment interview statements in referencing the influence of
14 Gaye and “Got to Give it Up” in the creation of “Blurred Lines.” In their closing
15 argument, counsel for the Gayes likewise argued that Williams committed perjury
16 based on the same testimony giving rise to the instant motion. (See supra, at 5-6.)
17 The jury already considered similar out-of-court statements in rendering its verdict,
18 both for the truth of the matter asserted and their impact on Williams’ credibility.
19

The Gayes similarly attacked Williams’ credibility and accused him of

20 perjury in their motion for attorney’s fees. (Dkt. 479.) Indeed, the Gayes dedicated
21 three pages to Williams’ and Thicke’s alleged inconsistent statements, making
22 nearly the same arguments they make here. (Compare Dkt. 479 at 9 (“For his part,
23 Mr. Williams admitted outside of this litigation that he tried to take and use the
24 feeling that ‘Got To’ gave him while creating ‘Blurred’ and pictured himself as
25 Marvin Gaye in the studio while creating ‘Blurred.’ Yet, in his sworn deposition, he
26 inconsistently said neither ‘Got To’ nor Marvin Gaye ever crossed his mind while
27 creating ‘Blurred.’”) with Mot. at 13 (“There is simply no way to reconcile these
28
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1 statements with Williams’s sworn testimony throughout this action that neither
2 Marvin Gaye nor ‘Got To’ ever crossed his mind while creating ‘Blurred.’”).
3

Accordingly, the interview statements, to the extent they prove anything, are

4 at best cumulative of evidence the Gayes raised (and indeed focused on) before, and
5 thus cannot establish fraud on the court as a matter of law. See, e.g., Levander, 180
6 F. 3d at 1120 (perjury is not fraud on the court where there was already an
7 “opportunity to challenge the alleged perjured testimony [] because the issue was
8 already before the court”); Estate of Stonehill, 660 F.3d at 435 (nondisclosure was
9 not fraud on the court because the moving parties already had circumstantial
10 evidence of the hidden facts and therefore the new information “did not significantly
11 change the story presented to the district court”); Sierra Pac. Indus., 862 F. 3d at
12 1171-72 (failure to disclose accusation that counsel offered bribe to witness to
13 falsely admit to arson did “not significantly change the story presented to the district
14 court” because moving party already possessed circumstantial evidence of arson);
15 see also, e.g., Greiner v. City of Champlin, 152 F.3d 787, 789 (8th Cir. 1998)
16 (affirming denial of Rule 60 motion where “the bad acts were not only known to
17 appellants, but were the subject of testimony in the Ott trial. To the extent the
18 psychological report was even arguably relevant, it was cumulative.”); c.f. Martin v.
19 Chem. Bank, 940 F. Supp. 56, 59 (S.D.N.Y. 1996), aff’d, 129 F.3d 114 (2d Cir.
20 1997) (“The testimony in question…[e]ven if received…would have been
21 cumulative. In the Court’s judgment, it would not have affected the result.”).
22

For all the foregoing reasons, the Gayes have failed to offer any evidence, let

23 alone clear and convincing evidence, of fraud on the court under the exacting
24 applicable standard and uniform relevant precedent involving very different
25 circumstances. There is no justification to grant relief from judgment, and the
26 Gayes’ motion should be denied.
27
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1 III.

THERE IS NO BASIS TO RECONSIDER THE FEES ORDER

2

A.

3
4

Cumulative Evidence Of Williams’ Alleged Lack Of Credibility
Would Not Compel A Different Result On The Fees Order

Finally, even assuming the Gayes had alleged and shown perjury that could

5 amount to fraud on the court (and they have not), there still would be no basis to
6 grant the Gayes the relief they seek by reconsidering the Fees Order. As noted
7 above, the Court already considered Williams’ alleged lack of credibility in denying
8 the Gayes’ motion (see Dkt. 554 at 9)—and in any case, that issue is of limited
9 relevance to whether fees are warranted.
10

As this Court recognized in the Fees Order, a district court’s decision whether

11 to grant attorney’s fees to the prevailing party in a copyright case is based on a
12 number of considerations. (Dkt. 554 at 3 (discussing “Fogerty Factors”).) None of
13 those factors turns explicitly on the credibility of the losing party’s witnesses. As
14 shown below, the Gayes fail to show that their cumulative evidence of Williams’
15 alleged lack of credibility would have any impact on the Court’s determination that
16 fees are not warranted here, and there is thus no basis to reconsider that order. See
17 e.g., Sierra Pac. Indus., 862 F. 3d at 1171–72 (newly discovered information did not
18 significantly change the picture presented based on previous evidence); Greiner,
19 152 F.3d at 789 (Rule 60 motion denied where new evidence was cumulative).
20

First, the Court concluded that the “degree of success” factor favored a fee

21 award because the Gayes prevailed at trial. (Dkt. 554 at 4.) Cumulative evidence of
22 Williams’ alleged lack of credibility would not tip this factor any further in the
23 Gayes’ direction.
24

Second, the Court concluded that a consideration of the purposes of the

25 Copyright Act did not favor a fee award because both parties advanced positions
26 that contributed to “at least an informed discussion on the demarcation of copyright
27 law.” (Id. at 6.) The Court focused on the parties’ positions regarding the scope of
28 the Gayes’ copyright and whether the sound recording of “Got to Give it Up” was
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1 admissible at trial. The Court did not discuss Williams’ pre-litigation statements or
2 his credibility, and the additional evidence the Gayes now seek to present has no
3 bearing on this factor.
4

Third, in assessing whether Williams’ litigation positions were objectively

5 unreasonable or frivolous, the Court “[c]onsidered as a whole” the counter6 defendants’ substantive defenses, including that they “prevailed on several
7 important issues” and obtained favorable opinions from musicologists before
8 commencing suit, and that ultimately “this was a close and difficult case.” (Id. at
9 10.) The Gayes’ purported new evidence of Williams’ lack of credibility does not
10 bear on the closeness of this case or the merits of his substantive defenses.
11

Although the Court also considered the Gayes’ argument that Williams and

12 Thicke had made pre-litigation statements regarding the creation of “Blurred Lines”
13 that were inconsistent with their subsequent testimony, the Court rightly recognized
14 that these alleged inconsistent statements do not “necessarily concern the ultimate
15 legal question submitted to the jury—whether there was a substantial similarity
16 between two musical works.”

(Dkt. 554 at 9.)

Thus, even if “some of the

17 statements by the Thicke Parties both before and during the litigation were
18 inconsistent, the Thicke Parties have shown that their overall defense against the
19 claims of infringement of reasonable and non–frivolous.” The Court also noted that
20 “it is not at all uncommon for a party to make inconsistent statements during the
21 course of litigation,” and that “[t]hat is what leads to cross–examination to impeach
22 such a witness.” (Id. at 10.)5
23
24
25
26
27
28

5

The Gayes argue (Mot. at 18) that the Court did not give proper weight to
Williams’ pre-lawsuit statements because it credited Williams’ argument that they
were “promotional,” and thus not necessarily intended to be true. They contend that
Williams’ post-judgment statements “can in no way be considered promotional,”
and should be given more weight. But the Court did not simply disregard Williams’
pre-lawsuit statements for being “promotional.” It considered them and concluded
that even they were relevant to credibility, “it does not make this pattern of conduct
objectively unreasonable.” (Fees Order at 9.) There is no reason to analyze
Williams’ post-judgment statements any differently. They too are out-of-court
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1

For all these same reasons, Williams’ post-judgment statements have little if

2 any bearing on the reasonableness of his litigation positions. And to the extent
3 Williams’ credibility is relevant at all, the Court already considered it in deciding
4 that his litigation positions were reasonable and not frivolous.6
5

Finally,

the

Court’s

analyzed

the

“chilling

effect,”

“motivation,”

6 “compensation and deterrence” factors. (Id. at 6-7, 10.) The Court held that the
7 whether a fee award would have a “chilling effect” was, at best, neutral for the
8 Gayes, because Williams had advanced defenses that were “objectively reasonable
9 and potentially meritorious,” and that the “motivation” factor likewise was “at best
10 neutral” based on an analysis of the factual dispute between the parties regarding
11 their pre-litigation settlement discussions. (Id. at 6-7.) Williams’ recent statements
12 do not impact either of these factors. And the Court’s conclusion that considerations
13 of compensation and deterrence do not support a fee award similarly have nothing to
14 do with witness credibility, and would not be impacted by evidence of Williams’
15 recent statements, no matter how they are construed. (Id. at 10.)
16

In sum, the Gayes’ cumulative evidence of Williams’ alleged lack of

17 credibility would have no material impact on the Court’s analysis of the Gayes’
18 request for fees, and do not compel any different result. The Gayes’ request for
19 relief from the Fees Order should be denied for this reason too.
20

statements, not made under oath, that had some promotional purpose, given that
21 publication of the interview coincided with Williams’ appearance on the cover of
GQ and promotion of a music festival and new song. (Exs. 8-10.)
22 6
To the extent relevant here at all, the cases the Gayes cite relating to the
appropriateness
of a fee award (Mot. at 21-23) do not show that cumulative
23
evidence of Williams’ alleged lack of credibility would have any meaningful impact
24 on the Court’s determination of whether fees are warranted under all the relevant
factors and considerations. See, e.g., IO Grp., Inc. v. Jordan, 2010 U.S. Dist.
25 LEXIS 61722, at *6 (N.D. Cal. May 27, 2010) (“inherent contradictions in
Defendant’s factual statements,” similar to what the Court already considered, were
26 one of several considerations that favored fee award); Nutrition Distribution Ltd.
Liab. Co., v. PEP Research, Ltd. Liab. Co., 2019 U.S. Dist. LEXIS 78045, at * 5
27 (S.D. Cal. May 8, 2019) (denying fee award without discussion of witness
credibility or perjury).
28
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1

B.

2
3

If The Fees Order Is Reconsidered, There Should Be Further
Briefing On The Reasonableness Of The Gayes’ Request

For all the reasons shown above, the Gayes should not be afforded relief from

4 judgment to seek reconsideration of the Fees Order. But if the Gayes are granted
5 such relief, then there should be further proceedings relating to the amount of a
6 reasonable fee award. Although the parties addressed the reasonableness of the
7 Gayes’ request for fees in their prior briefing, the Court did not reach that issue
8 because the request for fees was denied. Key issues and assumptions relevant to the
9 Gayes’ request have changed since the parties briefed it nearly four years ago. For
10 example, the Court will have to identify and parse out from any award fees
11 attributable to the Gayes’ claims against Clifford Harris, Interscope Records, UMG
12 Recordings, Inc., Universal Music Distribution, and Star Trak, as the Ninth Circuit
13 reversed the judgment against them. See Williams, 895 F.3d at 1130.
14

The Gayes also are not entitled to recover non-taxable costs as a component

15 of any award, pursuant to the Supreme Court’s decision in Rimini Street, Inc. v.
16 Oracle USA, Inc., 139 S. Ct. 873 (2019).

Additional proceedings would be

17 necessary to address the effect of this decision on the Gayes’ request.
Conclusion

18
19

For the foregoing reasons, the Gayes’ motion for relief from judgment should

20 be denied.
21
22 DATED: January 31, 2020
23

QUINN EMANUEL URQUHART &
SULLIVAN, LLP

24
25
26
27

By

/s/ Daniel C. Posner
Daniel C. Posner
Attorneys for Pharrell Williams and More
Water From Nazareth Publishing, Inc.

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1
2

CERTIFICATE OF SERVICE
I am employed in the County of Los Angeles, State of California. I am over

3 the age of eighteen years and not a party to the within action; my business address is
4 865 South Figueroa Street, 10th Floor, Los Angeles, California 90017.
5

I hereby certify that a true and correct copy of the document titled “ Plaintiff

6 and Counter-Defendant Pharrell Williams’ and Counter-Defendant More Water
7 From Nazareth Publishing, Inc.’s Opposition to Motion for Relief from Amended
8 Judgment” has been served via electronic mail transmission on January 31, 2020 to
9 all counsel of record who are deemed to have consented to electronic service via the
10 Court’s CM/ECF system. The transmission was reported as complete and without
11 error.
12
13

Executed on January 31, 2020, at Los Angeles, California.

14
15
16

s/ Alex Bergjans
Alex Bergjans

17
18
19
20
21
22
23
24
25
26
27
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