Case 2:13-cv-06004-JAK-AGR Document 346 Filed 03/17/15 Page 1 of 22 Page ID #:9629

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Paul H. Duvall (SBN 73699)

E-Mail: pduvall@kingballow.com
KING & BALLOW
6540 Lusk Blvd., Suite 250
San Diego, CA 92121
(858) 597-6000
Fax: (858) 597-6008
Attorneys for Defendants and CounterClaimants Frankie Christian Gaye and
Nona Marvisa Gaye

Richard S. Busch (TN BPR 014594) (pro hac

vice)
E-Mail: rbusch@kingballow.com
Sara R. Ellis (TN BPR 030760) (pro hac vice)
E-Mail: sellis@kingballow.com
KING & BALLOW
315 Union Street, Suite 1100
Nashville, TN 37201
(615) 259-3456 Fax: (615) 726-5417
Attorneys for Defendants and CounterClaimants Frankie Christian Gaye and Nona
Marvisa Gaye

Mark L. Block (SBN 115457)

E-Mail: mblock@wargofrench.com
WARGO & FRENCH LLP
1888 Century Park East; Suite 1520
Los Angeles, CA 90067
(310) 853-6355 Fax: (310) 853-6333
Attorneys for Defendants and CounterClaimants Frankie Christian Gaye and
Nona Marvisa Gaye

Paul N. Philips (SBN 18792)

E-Mail: pnp@pnplegal.com
The Law Offices of Paul N. Philips
9255 West Sunset Boulevard
West Hollywood, CA 90069
(323)813-1126 Fax: (323) 854-6902
Attorney for Defendant and Counter-Claimant
Marvin Gaye III

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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PHARRELL WILLIAMS, an
individual; ROBIN THICKE, an
individual; and CLIFFORD HARRIS,
JR., an individual,
Plaintiffs,

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vs.
BRIDGEPORT MUSIC, INC., a
Michigan corporation; FRANKIE
CHRISTIAN GAYE, an individual;
MARVIN GAYE III, an individual;
NONA MARVISA GAYE, an
individual; and DOES 1 through 10,
inclusive,

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Defendants.

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_______________________________

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AND RELATED COUNTERCLAIMS

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Case No. CV13-06004-JAK (AGRx)

Hon. John A. Kronstadt, Ctrm 750
COUNTER-CLAIMANTS JOINT POSTTRIAL MOTION FOR INJUNCTIVE
RELIEF
Action Commenced: August 15, 2013
Trial Date: February 24, 2015

Case 2:13-cv-06004-JAK-AGR Document 346 Filed 03/17/15 Page 2 of 22 Page ID #:9630

TABLE OF CONTENTS

2 TABLE OF AUTHORITIES ..................................................................................................................ii

3 I. INTRODUCTION ............................................................................................................................... 1
4 II. ARGUMENT ....................................................................................................................................... 3
5

A. An Injunction Against the Exploitation of Blurred Lines is Necessary. ..................................... 4

1. Irreparable Injury is Inevitable and Remedies Available at Law are Inadequate to

Compensate for that Injury ....................................................................................................... 5

2. The Balance of Equities Weigh in Favor of the Gayes ............................................................. 6

3. An Injunction is in the Public Interest ...................................................................................... 7

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B. Acts by the Interscope Parties ......................................................................................................... 8

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C. Impoundment of Copies of Blurred Lines is Necessary. ............................................................. 9

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D. Relief Should Not Wait for a Ruling on Declaratory Relief ........................................................... 9

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1. Declaratory Relief is Improper ............................................................................................... 10

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2. Plaintiffs have Waived any Right to Request Judgment as a Matter of Law ......................... 11

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3. There is no Colorable Basis to Even Argue for a New Trial .................................................. 12

16 II. CONCLUSION .................................................................................................................................. 16

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TABLE OF AUTHORITIES

1
2 Cases

3 Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3rd Cir. 1983) ......... 7
4 Bilbrey by Bilbrey v. Brown, 738 F.2d 1462 (9th Cir. 1984) ........................................... 11
5 Bridgeport Music, Inc. v. Justin Combs Pub., 507 F.3d 470 (6th Cir. 2007) ......... 5, 7, 8, 9
6 Cadence Design Systems, Inc. v. Avant! Corp., 125 F.3d 824 (9th Cir. 1997) .................. 6
7 Cal-Agrex, Inc. v. Tassell, 408 F. Appx 58 (9th Cir. 2011) ............................................ 13
8 Concrete Mach. Co. v. Classic Lawn Ornaments, Inc., 843 F.2d 600 (1st Cir. 1988)....... 6
9 Desrosiers v. Flight Intl of Fla., Inc., 156 F.3d 952 (9th Cir. 1998)............................... 13
10 Dickinson v. Gen. Accident Fire & Life Assurance Corp., 147 F.2d 396 (9th Cir.
11

1945) .............................................................................................................................. 10

12 E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951 (9th Cir. 2009) ............................... 12
13 eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) ................................................. 4
14 eBay, Inc. v. Bidders Edge, Inc., 100 F. Supp. 2d 1058 (N.D. Cal. 2000) ........................ 6
15 Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103 (9th Cir.
16

1987) .............................................................................................................................. 11

17 Landes Constr. Co., Inc. v. Royal Bank of Can., 833 F.2d 1365 (9th Cir. 1987) ............. 13
18 McGraw-Edison Co. v. Preformed Line Prods. Co., 362 F.2d 339 (9th Cir. 1966) ........ 11
19 MetroGoldwynMayer Studios Inc. v. Grokster, Ltd., 518 F. Supp. 2d 1197 (C.D.
20

Cal. 2007) ........................................................................................................................ 3

21 Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) ..................... 8
22 Micro Star v. Formgen Inc., 154 F.3d 1107 (9th Cir. 1998) .............................................. 3
23 Milhouse v. Travelers Commercial Ins. Co., 982 F. Supp. 2d 1088 (C.D. Cal. 2013) .... 13
24 Molski v. M.J. Cable, Inc., 481 F.3d 724 (9th Cir. 2007) ................................................. 13
25 Ng v. Geithner, 418 F. Appx 625 (9th Cir. 2011) ........................................................... 12
26 Nitco Holding Corp. v. Boujikian, 491 F.3d 1086 (9th Cir. 2007) ................................... 12
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1 Openwave Sys. Inc. v. Myriad France S.A.S., No. C 10-02805 WHA, 2011 WL
2

2580991 (N.D. Cal. June 29, 2011) ............................................................................... 10

3 Oracle USA, Inc. v. Qtrax, Inc., No. C09-3334 SBA BZ, 2011 WL 4853436 (N.D.
4

Cal. Sept. 27, 2011) ......................................................................................................... 9

5 Sherman v. Wood, 573 F. Appx 666 (9th Cir. 2014) ................................................. 12, 13
6 Silver Sage Partners, Ltd. v. City of Desert Hot Springs, 251 F.3d 814 (9th Cir. 2001) . 13
7 Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984) ....................... 3, 9
8 Taylor Corp. v. Four Seasons Greetings, LLC, 403 F.3d 958 (8th Cir. 2005)................... 7
9 Tortu v. Las Vegas Metro. Police Dept, 556 F.3d 1075 (9th Cir. 2009) ......................... 12
10 Triad Sys. Corp. v. Se. Exp. Co., 64 F.3d 1330 (9th Cir. 1995) ......................................... 6
11 Trulsson v. Cnty. of San Joaquin Dist. Attorneys Office, No. 2:11-CV-02986 KJM,
12

2014 WL 4748117 (E.D. Cal. Sept. 23, 2014) .............................................................. 16

13 Walt Disney Co. v. Powell, 897 F.2d 565 (D.C. Cir. 1990)................................................ 5
14 Warner Bros. Entmt Inc. v. WTV Sys., Inc., 824 F. Supp. 2d 1003 (C.D. Cal. 2011) ... 3, 7
15 Warner Bros. Home Entmt Inc. v. FilmAndMusicUSA, LLC, No. CV 13-00874 SJO
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JCX, 2013 WL 4478956 (C.D. Cal. Aug. 20, 2013) ........................................... 4, 5, 6, 7

17 White v. Samsung Elecs. Am., Inc., 989 F.2d 1512 (9th Cir. 1993) ................................... 3
18 Winarto v. Toshiba Am. Elecs. Components, 274 F.3d 1276 (9th Cir. 2001) .................. 11
19 Statutes
20 17 U.S.C. 106 ...........................................................................................................3, 6, 8
21 17 U.S.C. 502 ...........................................................................................................1, 4, 5
22 17 U.S.C. 503 ...............................................................................................................1, 4
23 Rules
24 Fed. R. Civ. P. 50 ........................................................................................................11, 12
25 Fed. R. Civ. P. 65 ................................................................................................................1
26 Treatises
27 Melville B. Nimmer & David Nimmer, Nimmer on Copyright 14.06 [B] (2007) ..........5
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Pursuant to 17 U.S.C. 502 and 503 and Federal Rule of Civil Procedure 65,

2 Counter-Claimants Nona Marvisa Gaye, Frankie Christian Gaye, and Marvin Gaye III
3 (hereinafter the Gayes) respectfully move this Court to immediately and permanently
4 enjoin Plaintiffs and Counter-Defendants from reproducing, distributing, performing,
5 displaying, and preparing derivative works of the infringing work Blurred Lines, or
6 authorizing any third-party to do the same, and impound any and all infringing articles
7 containing the composition Blurred Lines, including all copies of the sound recording
8 Blurred Lines, since it contains the infringing composition in it. This Courts ruling on
9 this Motion should not wait on the resolution of Plaintiffs planned Motion for
10 Declaratory Relief and Motion for New Trial because, as discussed below, they will not
11 succeed, and Plaintiffs are being unjustly enriched (and the Gayes irreparably harmed)
12 each day that Blurred Lines is being sold.
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14

I. INTRODUCTION
On August 15, 2013 Plaintiffs Robin Thicke, Pharrell Williams, and Clifford

15 Harris, Jr. (Plaintiffs) filed a Complaint seeking a declaration of non-infringement for

16 their composition and sound recording Blurred Lines. (Dkt. No. 1). On October 30,
17 2013, Nona Marvisa Gaye, Frankie Christian Gaye, and Marvin Gaye III filed a
18 counterclaim for infringement of Got to Give it Up by Blurred Lines and sought
19 under 17 U.S.C. 502:
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A permanent injunction requiring the [Plaintiffs and Counter-Defendants]

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and their agents, servants, employees, officers, attorneys, successors,

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licensees, partners, and assigns, and all persons acting in concert or

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participation with each or any one of them, to cease directly and indirectly

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infringing, and causing, enabling, facilitating, encouraging, promoting,

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inducing, and/or participating in the infringement of any of Gaye Familys

rights protected by the Copyright Act;1

3 (Dkt. No. 14 at 44).

On March 10, 2015, after a seven-day trial and nearly two days of deliberations, a

5 unanimous eight-member jury found Blurred Lines infringed the Gayes copyright in
6 Got to Give it Up, and awarded the Gayes $7,378,647.19 in profits and actual damages
7 against Plaintiffs Robin Thicke and Pharrell Williams.2 (Dkt. No. 320 at 2-3).

As

discussed

in

the

Gayes

Motion

to

Correct

the

Verdict,

filed

9 contemporaneously herewith, it is undisputed that Star Trak, Interscope, UMG

10 Recordings Inc., and Universal Music Distribution (collectively, the Interscope
11 Parties), reproduce, sell, license, and distribute Blurred Lines, and by doing so are
12 also directly liable for copyright infringement. In addition, as explained below, and
13 without regard to their liability for direct copyright infringement, the Interscope Parties
14 must be enjoined from manufacturing, reproducing, distributing, selling, and licensing
15 Blurred Lines because the sound recording of Blurred Lines contains the infringing
16 musical composition Blurred Lines, and they cannot be permitted to distribute or
17 otherwise exploit it.

The Gayes do not intend to interminably cease the exploitation of Blurred

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19 Lines, but instead seek this injunction and impoundment in order to negotiate an
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On November 19, 2013, Counter-Claimant Marvin Gaye III filed his Counterclaim and
also sought a permanent injunction against Plaintiffs and Counter-Defendants for the
exploitation of Blurred Lines. (Dkt. No. 36 at 17-18).
2
The Gayes will concurrently file a Motion to Correct the Verdict to impose liability for
direct copyright infringement against Clifford Harris Jr., Interscope Records, a division of
UMG Recordings, Inc., Star Trak Entertainment, LLC, and Universal Music Distribution,
a division of Universal Music Group Distribution Corp. As a matter of law, these Counter
Defendants are all liable for copyright infringement. This was not only discussed at the trial
as a possibility, but the motion was contemplated, discussed, and approved by the Court.
(Busch Decl. Exhibit A, Trial Tr. March 4, 2015 at 164:16-18, Busch Decl. Exhibit B,
March 5, 2015 at 38:8-18). The Gayes hereby incorporate the facts and arguments made
within that Motion.
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1 agreement with Plaintiffs and Counter-Defendants for proper attribution of Marvin Gaye
2 as a writer of Blurred Lines and for the use of Got to Give it Up in the infringing
3 work, so that the Gayes may share in the copyright and all future proceeds of Blurred
4 Lines, as is their right.
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II. ARGUMENT
The Gayes are entitled to the exclusive use of Got to Give it Up under 17 U.S.C.

7 106, including the right to, and the exclusive right to authorize others to, reproduce,
8 distribute, sell, perform, display, and prepare derivative works of Got to Give it Up.
9 The Gayes also have the exclusive right to decide when, where, to whom, and for how
10 much they will authorize transmission of their Copyrighted Works to the public.
11 Warner Bros. Entmt Inc. v. WTV Sys., Inc., 824 F. Supp. 2d 1003, 1012 (C.D. Cal.
12 2011) (citing MetroGoldwynMayer Studios Inc. v. Grokster, Ltd., 518 F. Supp. 2d
13 1197, 1218 (C.D. Cal. 2007)). Copyright owners also have the exclusive right to license
14 their works. See White v. Samsung Elecs. Am., Inc., 989 F.2d 1512, 1518 (9th Cir. 1993)
15 (balancing the right of fair use of parodies and copyright holders exclusive rights to
16 license derivative works of [their] shows.); see also Micro Star v. Formgen Inc., 154
17 F.3d 1107, 1113 (9th Cir. 1998) (citing Sony Corp. of Am. v. Universal City Studios,
18 Inc., 464 U.S. 417, 451 (1984) (in discussing that the infringement was for purely
19 financial gain, the Court stated [e]very commercial use of copyrighted material is
20 presumptively an unfair exploitation of the monopoly privilege that belongs to the owner
21 of the copyright.). The use of the composition of Got to Give it Up within the
22 composition and sound recording of Blurred Lines violates these rights.
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Pursuant to the jurys verdict of copyright infringement, Plaintiffs and Counter-

24 Defendants, and those in active concert or participation with them, must be enjoined
25 from any exploitation of the composition or sound recording Blurred Lines, and
26 exploitation of any article containing or embodying Blurred Lines, including but not
27 limited to the album Blurred Lines. This Court should also order the impoundment of all
28 copies of Blurred Lines, including any album or other article containing or embodying

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1 Blurred Lines, within Plaintiffs and Counter-Defendants possession, custody, and

2 control.
3

The Copyright Act explicitly authorizes a court to grant final injunctions to

4 prevent or restrain future infringement. Any court having jurisdiction of a civil action
5 arising under this title may, subject to the provisions of section 1498 of title 28, grant
6 temporary and final injunctions on such terms as it may deem reasonable to prevent or
7 restrain infringement of a copyright. 17 U.S.C. 502(a). Further, this Court is
8 authorized to order the impounding, on such terms as it may deem reasonableof all
9 copies or phonorecords claimed to have been made or used in violation of the exclusive
10 right of the copyright owner. 17 U.S.C. 503(a)(1)(A).
11

This is not controversial relief being requested. As explained below, it is required

12 and has been imposed whenever a finding of copyright infringement has been made and
13 the relief is requested.
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16

A. An Injunction Against the Exploitation of Blurred Lines is

Necessary.
To obtain a permanent injunction, a plaintiff must demonstrate: (1) that it has

17 suffered an irreparable injury; (2) that remedies available at law, such as monetary
18 damages, are inadequate to compensate for that injury; (3) that, considering the balance
19 of hardships between the plaintiff and defendant, a remedy in equity is warranted; and
20 (4) that the public interest would not be disserved by a permanent injunction. eBay Inc.
21 v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006); see also Warner Bros. Home
22 Entmt Inc. v. FilmAndMusicUSA, LLC, No. CV 13-00874 SJO JCX, 2013 WL
23 4478956, at *5 (C.D. Cal. Aug. 20, 2013).
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The Gayes will suffer irreparable harm to their copyright in Got to Give it Up if

25 an injunction is not issued. Plaintiffs and Counter-Defendants will continue to

26 interpolate Got to Give it Up in Blurred Lines without authorization unless
27 precluded by this Court. Money damages awarded by the jury are not sufficient to
28 protect the Gayes intellectual property rights because the award is limited to past uses.

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1 Every sale that is not attributed and accounted to the Gayes is an infringement of their
2 exclusive rights. The balance of relative harms among the parties weighs in favor of
3 injunctive relief. An injunction order is also in the public interest to vindicate the
4 integrity of copyright law and the Gayes copyrights in Blurred Lines. Not only is
5 the issuance of a permanent injunction justified [w]hen a copyright plaintiff has
6 established

threat

of

continuing

infringement,

he

is

entitled

to

an

7 injunction.Bridgeport Music, Inc. v. Justin Combs Pub., 507 F.3d 470, 492 (6th Cir.
8 2007) (quoting Walt Disney Co. v. Powell, 897 F.2d 565, 567 (D.C. Cir. 1990)). As
9 permitted by 17 U.S.C. 502, Plaintiffs, Counter-Defendants, their agents, servants,
10 employees, officers, attorneys, successors, licensees, partners, and assigns, and all
11 persons acting in concert or participation with each or any one of them, to cease directly
12 and indirectly infringing, and causing, enabling, facilitating, encouraging, promoting,
13 inducing, and/or participating in the infringement of any of Gaye Familys rights
14 protected by the Copyright Act must be enjoined from further infringement.
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1. Irreparable Injury is Inevitable and Remedies Available at

Law are Inadequate to Compensate for that Injury
It is uncontroversial that a showing of past infringement and a substantial

18 likelihood of future infringement justifies issuance of a permanent injunction.

19 Bridgeport Music, Inc., 507 F.3d at 492 (citing Melville B. Nimmer & David Nimmer,
20 Nimmer on Copyright 14.06 [B] (2007). Without such an injunction, [Plaintiffs and
21 Counter-Defendants] may continue to engage in the unauthorized use and sale of [the
22 Gayes] copyrighted material. Warner Bros. Home Entm't Inc., 2013 WL 4478956, at
23 *5. Despite the jurys verdict, Blurred Lines continues to be sold on iTunes and
24 Amazon.com. (Attached to Busch Decl. as Exhibits C, D). Not only is the issuance of a
25 permanent injunction justified [w]hen a copyright plaintiff has established a threat of
26 continuing infringement, he is entitled to an injunction.Bridgeport Music, Inc., 507
27 F.3d at 492 (quoting Walt Disney Co., 897 F.2d at 567).
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A permanent injunction is justified because there is continued infringement of

2 Got to Give it Up. The jurys award only applies to past sales of the infringing work
3 and does not provide the Gayes a percentage of future sales and profits. Further, without
4 an injunction, Plaintiffs and Counter-Defendants, in violation of 17 U.S.C. 106, may
5 license Blurred Lines allowing others to infringe Got to Give it Up. Harm resulting
6 from lost profits and lost customer goodwill is irreparable because it is neither easily
7 calculable, nor easily compensable and is therefore an appropriate basis for injunctive
8 relief. Warner Bros. Entmt Inc., 824 F. Supp. 2d at 1013 (quoting eBay, Inc. v.
9 Bidders Edge, Inc., 100 F. Supp. 2d 1058, 1066 (N.D. Cal. 2000)). Irreparable injury
10 occurs with each sale of Blurred Lines that does not acknowledge Marvin Gaye as a
11 co-writer and that is not accounted to the Gayes for the use of Got to Give it Up; the
12 Gayes cannot be compensated for that injury by law. Accordingly, the factors of
13 irreparable injury and lack of available remedies at law must be found in favor of the
14 Gayes.
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16

2. The Balance of Equities Weigh in Favor of the Gayes

An injunction would not harm Plaintiffs and Counter-Defendants and instead

17 would merely require them to comply with the Copyright Act. Warner Bros. Home
18 Entmt Inc., 2013 WL 4478956, at *5. Plaintiffs and Counter-Defendants cannot
19 complain of the harm that will befall [them] when properly forced to desist from its
20 infringing activities. Triad Sys. Corp. v. Se. Exp. Co., 64 F.3d 1330, 1338 (9th Cir.
21 1995). Where the only hardship that the defendant will suffer is lost profits from an
22 activity which has been shown likely to be infringing, such an argument in defense
23 merits little equitable consideration . . . . Id. (quoting Concrete Mach. Co. v. Classic
24 Lawn Ornaments, Inc., 843 F.2d 600, 612 (1st Cir. 1988)); see also Cadence Design
25 Systems, Inc. v. Avant! Corp., 125 F.3d 824, 830 (9th Cir. 1997). Plaintiffs and Counter26 Defendants cannot assert any other harm.
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Further, the Gayes have every incentive to negotiate an agreement with

28 [Plaintiffs and Counter-Defendants] to permit them to distribute the infringing work, and

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1 there is no reason to believe that the parties will not bargain around the injunction.
2 Bridgeport Music, Inc., 507 F.3d at 493. In fact, in copyright infringement actions, the
3 denial of a request for injunctive relief could otherwise amount to a forced license to
4 use the creative work of another. Id. (quoting Taylor Corp. v. Four Seasons Greetings,
5 LLC, 403 F.3d 958, 967-68 (8th Cir. 2005) (upholding an immediate injunction on sales
6 of an infringing musical work pre-appeal). Moreover, because the award is only for past
7 sales, without injunctive relief, the Gayes would be forced to relitigate the infringement,
8 at least every three years,3 to collect the revenue and profits earned by Plaintiffs and
9 Counter-Defendants post-verdict.

As such, continued exploitation, without proper credit and compensation, will

10

11 harm the Gayes and actually reward Plaintiffs and Counter-Defendants for their
12 infringing acts. Thus, this factor must weigh in favor of the Gayes.

3. An Injunction is in the Public Interest

13

An injunction against the further exploitation of Blurred Lines is in the public

14

15 interest. [I]t is virtually axiomatic that the public interest can only be served by
16 upholding copyright protections and correspondingly, preventing the misappropriation
17 of skills, creative energies, and resources which are invested in the protected work.
18 Warner Bros. Entmt Inc., 824 F. Supp. 2d at 1015 (quoting Apple Computer, Inc. v.
19 Franklin Computer Corp., 714 F.2d 1240, 1255 (3rd Cir. 1983)). A permanent
20 injunction would serve the public interest by protecting the holders of valid copyrights,
21 rather than allowing Defendants to continue selling inferior and infringing copies of
22 Plaintiffs copyrighted material to the public. Warner Bros. Home Entmt Inc., 2013
23 WL 4478956, at *5.

Any argument that the public would be denied the opportunity to hear or purchase

24

25 Blurred Lines should also fail. This is not a concern that is unique to this case; an
26 injunction is the standard remedy when past infringement has been proven and future
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The statute of limitations under the Copyright Act is three years. 17 U.S.C. 507(b).
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1 infringement is likely. Bridgeport Music, Inc., 507 F.3d at 493. Thus, this factor must
2 also be weighed in favor of the Gayes.

B. Acts by the Interscope Parties

3
4

Plaintiffs and Counter-Defendants counsel has publically stated that the Gayes

5 should not be able to obtain an injunction because the jury did not find infringement by
6 the Interscope Parties. Counsel is wrong.

As discussed below, and in the Gayes

7 Motion to Correct the Verdict, filed contemporaneously herewith, the Interscope Parties
8 are all liable for direct copyright infringement as a matter of law. In addition, and
9 irrespective of their liability for direct copyright infringement, the Interscope Parties are
10 manufacturing, reproducing, selling, and distributing and licensing, the infringing
11 musical composition Blurred Lines within the sound recording. This activity must be
12 halted immediately.
13

The jury has unanimously found copyright infringement and this Court has

14 previously stated that such finding automatically imputes liability to the Interscope
15 Parties so long as they are distributing Blurred Lines. This Court stated [I]f you
16 establish infringement and its undisputed that a Universal entity or entities distributed
17 the recording, then there would be liability. (Busch Decl. Exhibit A, Trial Tr. March 4,
18 2015 at 165:6-8). The Court additionally stated, [i]f Star Trak distributed, then Star
19 Trak would be directly liable. (Busch Decl. Exhibit A, Trial Tr. March 4, 2015 at
20 166:21-22).

As discussed in detail above, and in the Gayes Motion to Correct the

21 Verdict, filed contemporaneously herewith, it is undisputed that the Interscope Parties

22 are all violating the exclusive rights of the Gayes with respect to Blurred Lines.
23 Accordingly, under 17 U.S.C. 106 the Interscope Parties are directly liable for
24 infringement for their exploitation of Blurred Lines. Further, even if the Interscope
25 Parties were not directly liable, in light of the jurys verdict, their continued acts of
26 exploitation

would at minimum constitute willful vicarious and contributory

27 infringement. See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913,
28 927 (2005).

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Furthermore, the sound recording of Blurred Lines contains the musical

2 composition that the jury found to be infringing, and it is that musical composition that
3 the Interscope Parties are selling, distributing, reproducing, performing, and displaying.
4 As was mentioned at trial, without the song, all Interscope would be distributing is a
5 picture of Robin Thicke and a CD containing silence. The Interscope Parties are
6 engaging in copyright infringement by selling Blurred Lines and must be enjoined.
7 Now that they are aware of the infringement by virtue of the jurys verdict, they are now
8 also undeniably committing contributory copyright infringement with each sale. See id.
9
10

C. Impoundment of Copies of Blurred Lines is Necessary.

Upon a finding of copyright infringement, the Court may order the impounding,

11 on such terms as it may deem reasonableof all copies or phonorecords claimed to have
12 been made or used in violation of the exclusive right of the copyright owner. 17 U.S.C.
13 503(a)(1)(A); see also Sony Corp. of Am., 464 U.S. at 434. Impoundment may also be
14 ordered when it is necessary to prevent violation of the Copyright Act. See Oracle USA,
15 Inc. v. Qtrax, Inc., No. C09-3334 SBA BZ, 2011 WL 4853436, at *2 (N.D. Cal. Sept.
16 27, 2011) report and recommendation adopted, No. C 09-3334 SBA BZ, 2011 WL
17 4853383 (N.D. Cal. Oct. 13, 2011).
18

In a similar music copyright infringement case, the Sixth Circuit found that the

19 district court did not err in ordering the impoundment of articles containing the
20 infringing work. After a finding of infringement, the district court immediately ordered
21 the defendants to impound all copies of the infringing song and album. Bridgeport
22 Music, Inc., 507 F.3d at 492. The appellate court upheld the district courts ruling
23 applying the factors for injunctive relief. Accordingly, based on the arguments above,
24 this Court should order the impoundment of any and all infringing articles containing the
25 composition or sound recording Blurred Lines.
26
27

D. Relief Should Not Wait for a Ruling on Declaratory Relief

This Courts ruling on injunctive relief should not wait for the resolution of

28 Plaintiffs Motion for declaratory relief because it will not succeed, and waiting on this

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1 motion and its resolution will irreparably harm the Gayes. Plaintiffs and Counter2 Defendants are being unjustly enriched each day that Blurred Lines is being sold.
3

On August 15, 2013 Plaintiffs and Counter-Defendants filed a Complaint for

4 Declaratory Relief seeking a declaration that the Gayes do not have an interest in the
5 copyright to the composition Got to Give it Up sufficient to confer standing on them to
6 pursue claims of infringement of that composition; or alternatively . . . that Blurred
7 Lines does not infringe Got to Give it Up or otherwise violate the Gayes rights.
8 (Dkt. No. 1 at 5). Plaintiffs also sought costs and attorney fees. (Id.). Plaintiffs claimed
9 there are no similarities between [P]laintiffs composition and Got to Give it Up
10 other than commonplace musical elements and their intent was solely to evoke an
11 era. (Id. at 2).
12

On March 10, 2015, the jury found the Thicke Parties committed copyright

13 infringement and delivered a special verdict in favor of the Gayes that resolved all issues
14 raised by Plaintiffs Complaint. (Dkt. No. 320 at 2-3). Plaintiffs counsel has told the
15 Court that the Courts ruling on their request for Declaratory Relief is not bound by the
16 jurys verdict. (Busch Decl. Exhibit E, Trial Tr. March 10, 2015 at 17:11-13). Plaintiffs
17 counsel is incorrect.
18

Plaintiffs request for Declaratory Relief must fail because (1) the jury verdict

19 resolved all issues raised by Plaintiffs Complaint and (2) Plaintiffs did not timely
20 request a Judgment as a Matter of Law under Federal Rule of Civil Procedure 50. They
21 have, therefore, waived any right to even request that this Court enter judgment in their
22 favor.
23
24

1. Declaratory Relief is Improper

Although declaratory relief is equitable in nature, [t]he right to a jury trial of

25 factual issues ordinarily triable to a jury is expressly preserved by the declaratory

26 judgment statute. Openwave Sys. Inc. v. Myriad France S.A.S., No. C 10-02805 WHA,
27 2011 WL 2580991, at *2 (N.D. Cal. June 29, 2011) (quoting Dickinson v. Gen. Accident
28 Fire & Life Assurance Corp., 147 F.2d 396, 397 (9th Cir. 1945)). The Ninth Circuit has

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1 explained that Declaratory relief should be denied when it will neither aid in clarifying
2 and settling legal relations in issue nor terminate the proceedings and accord the parties
3 relief from the uncertainty and controversy they faced. Greater Los Angeles Council on
4 Deafness, Inc. v. Zolin, 812 F.2d 1103, 1112 (9th Cir. 1987); see also Bilbrey by Bilbrey
5 v. Brown, 738 F.2d 1462, 1470 (9th Cir. 1984) (quoting McGraw-Edison Co. v.
6 Preformed Line Prods. Co., 362 F.2d 339, 342 (9th Cir. 1966), cert. denied, 385 U.S.
7 919 (1966)).
8

Here, declaratory relief will not clarify and settle the legal relations because the

9 jury has already reached a final verdict. Likewise, declaratory relief is inappropriate
10 because the controversy giving rise to the proceeding has been resolved by the verdict.
11 The jurys responses to Special Verdict questions 1 and 2 directly resolved the questions
12 of ownership of a valid copyright in Got to Give it Up and whether Blurred Lines
13 infringed Got to Give it Up. (Dkt. No. 320 at 2). The Court cannot now make a
14 contrary finding of fact. Winarto v. Toshiba Am. Elecs. Components, 274 F.3d 1276,
15 1283 (9th Cir. 2001).
16

Consequently, the issue of attorneys fees has also been resolved. Under 17 U.S.C.

17 505, the prevailing party may be awarded full costs and reasonable attorneys fees. As
18 the Gayes, not the Plaintiffs, are the prevailing party, the Plaintiffs are not entitled to this
19 relief.
20
21
22

2. Plaintiffs have Waived any Right to Request Judgment as a

Matter of Law
Plaintiffs have essentially requested a Judgment as a Matter of Law, through its

23 request for Declaratory Relief. Plaintiffs have, however, waived any right to seek this
24 relief. In order to preserve a challenge to the sufficiency of the evidence to support the
25 verdict in a civil case, a party must make two motions. First, a party must file a pre26 verdict motion pursuant to Fed. R. Civ. P. 50(a). Second, [and only if it preserved its
27 rights by filing a Rule 50(a) motion,] a party must file a post-verdict motion for
28 judgment as a matter of law or, alternatively, a motion for a new trial, under Rule 50(b).

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1 Nitco Holding Corp. v. Boujikian, 491 F.3d 1086, 1089 (9th Cir. 2007) (internal citations
2 omitted).
3

If a party has been fully heard on an issue during a jury trial and the court

finds that a reasonable jury would not have a legally sufficient evidentiary

basis to find for the party on that issue, the court may: (A) resolve the issue

against the party; and (B) grant a motion for judgment as a matter of law

against the party on a claim or defense that, under the controlling law, can be

maintained or defeated only with a favorable finding on that issue.

Fed. R. Civ. P. 50(a).

10

This motion must be made before the case is submitted to the jury. Id. No such

11 motion was made. Failure to make such a motion forfeits the claim. Sherman v. Wood,
12 573 F. Appx 666 (9th Cir. 2014); see also Ng v. Geithner, 418 F. Appx 625, 626 (9th
13 Cir. 2011) (Plaintiff waived ability to make post-verdict motion for judgment as a matter
14 of law by failing to make the motion at the close of his case); see also Tortu v. Las
15 Vegas Metro. Police Dept, 556 F.3d 1075, 1083 (9th Cir. 2009) (Failing to make a
16 Rule 50(a) motion before the case is submitted to the jury forecloses the possibility of
17 considering a Rule 50(b) motion.); E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951,
18 961 (9th Cir. 2009) (Under Rule 50, a party must make a Rule 50(a) motion for
19 judgment as a matter of law before a case is submitted to the jury.). Plaintiffs made no
20 motion, for judgment as a matter of law or otherwise, prior to the case being submitted
21 to the jury, and thus, any such motion is now barred. Their request for declaratory relief
22 should be denied.
23
24

3. There is no Colorable Basis to Even Argue for a New Trial

Recognizing that they cannot now ask for the Court to reverse the jury finding,

25 based on the alleged insufficiency of the evidence, and enter judgment in their favor, in
26 their Motion for Extension for More Time, Plaintiffs state that they intend to file a
27 Motion for a New Trial. (Dkt. No. 342). This motion will likewise fail, and should not
28 delay the issuance of the requested injunction.

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Denial of a new trial is appropriate as long as there is some reasonable basis for

2 the jury's decision. Sherman v. Wood, 573 F. Appx 666 (9th Cir. 2014) (quoting Molski
3 v. M.J. Cable, Inc., 481 F.3d 724, 729-30 (9th Cir. 2007)) (testimony and other evidence
4 at trial supported the jurys conclusion that officers had probable cause for arrest). A
5 district courts denial of motion for a new trial should only be disturbed where there is
6 an absolute absence of evidence to support the jurys verdict. Cal-Agrex, Inc. v.
7 Tassell, 408 F. Appx 58, 60 (9th Cir. 2011) (quoting Desrosiers v. Flight Intl of Fla.,
8 Inc., 156 F.3d 952, 957 (9th Cir. 1998)).
9

The Court may not grant a new trial simply because it would have arrived at a

10 different verdict. Milhouse v. Travelers Commercial Ins. Co., 982 F. Supp. 2d 1088,
11 1093 (C.D. Cal. 2013) (quoting Silver Sage Partners, Ltd. v. City of Desert Hot Springs,
12 251 F.3d 814, 819 (9th Cir. 2001)). Instead, the Court must have a definite and firm
13 conviction that a mistake has been committed. Milhouse, 982 F. Supp. 2d at 1093
14 (quoting Landes Constr. Co., Inc. v. Royal Bank of Can., 833 F.2d 1365, 1371-72 (9th
15 Cir. 1987)).
16

This is a copyright infringement case involving three essential issues:

17 ownership; (2) copying, both intrinsic and extrinsic; and (3) damages.

(1)

The Thicke

18 Parties did not challenge the ownership of the Gaye Parties in Got to Give it Up. On
19 copying, this Court denied the motion for summary judgment of the Thicke Parties
20 related to the extrinsic test, and remarked time and again during the trial that the
21 different opinions of the musicologist experts on the extrinsic test was a matter for cross22 examination. (See, e.g., Busch Decl. Exhibit F, Trial Tr. Trial Tr. Feb. 25, 2015 at 93:1423 19; EX G, Feb. 26, 2015 at 105:5-107:2; EX H, Feb. 27, 2015 at 79:16-87:9; EX I,
24 March 3, 2015 at 2:2-4:11).
25

While the experts differ on their interpretation of the written music deposited with

26 the copyright office, Ms. Finell testified that it was a lead sheet, and was a short hand
27 transcription that a musician would be able to interpret and know what to play. (Busch
28 Decl. Exhibit G, Trial Tr. Feb. 26, 2015 at 40:9-14). Indeed, Plaintiffs own expert

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1 Sandy Wilbur also agreed that the material submitted as the deposit copy of Got to
2 Give it Up would be characterized by her as a lead sheet if she saw it in the ordinary
3 course of business. (Busch Decl. Exhibit J, Trial Tr. March 4, 2015 at 50:24-51:3). She
4 also gave sworn testimony in other cases that a lead sheet is a less fleshed out version
5 of a chord pattern in a composition, that notation of a chord is representational, that there
6 are different ways to notate, and that different reasonable musicologists can interpret
7 notation differently. (Busch Decl. Exhibit K, Trial Tr. March 3, 2015 at 30:3-31:7). Ms.
8 Wilbur also stated in prior testimony that different notation may sound the same when
9 played. (Busch Decl. Exhibit K, Trial Tr. March 3, 2015 at 31:8-11).

Finally, Ms. Wilbur was thoroughly impeached on her musicological mistakes and

10

11 inconsistent prior testimony. (Busch Decl. Exhibit K, Trial Tr. March 3, 2015 at 27:2012 90:12; EX J, March 4, 2015 at 3:11-55:2).

Ultimately, Ms. Finell and Dr. Monson explained in great detail how the musical

13

14 elements of Blurred Lines copied compositional elements of Got to Give it Up, in

15 many ways, (Busch Decl. Exhibit G, Feb. 26, 2015 at 39:6-160:8; EX H, Feb. 26, 2015
16 at 29:22-49:2, 50:7-99:25, 117:10-118:9), and Ms. Wilbur acknowledged how one must
17 look at the compositions in whole in order to reach an opinion on copying. (Busch Decl.
18 Exhibit K, Trial Tr. March 3, 2015 at 65:18-23). The jury also heard testimony from
19 Harry Weinger, a UMG Recordings, Inc. executive stating Blurred Lines was utterly
20 based on Got to Give it Up.4 (Busch Decl. Exhibit G, Trial Tr. Feb 26, 2015 at 14:1421 19). He also stated that he believed Blurred Lines sampled/borrowed from Got to
22 Give it Up. (Busch Decl. Exhibit G, Trial Tr. Feb 26, 2015 at 20:4-18, 38:2-7). Mr.
23 Weinger even admitted that the bass line in Blurred Lines sounded very similar.5
24

Mr. Weingers emails were submitted to the jury as Exhibit 1200.

Mr. Williams also admitted that he understood when people say the bass lines in the
26 two songs sound similar. (Busch Decl. Exhibit A, Trial Tr. March 4, 2015 PM session at
27 128:7-129:8). Both Ms. Wilbur and Mr. Williams testified that certain of the audio
examples of Blurred Lines and Got to Give it Up played for them sounded similar.
28 (Busch Decl. Exhibit A, Trial Tr. March 4, 2015 at 126:23-128:3, 52:5-24).
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1 (Busch Decl. Exhibit G, Trial Tr. Feb 26, 2015 at 37:8-10). The jury also heard
2 inconsistent stories from Mr. Thicke and Williams about the creation of Blurred Lines,
3 including how both were thinking of Got to Give it Up during its creation.6 (Busch
4 Decl. Exhibit F, Trial Tr. Feb. 25, 2015 at 105:8-109:24, PM session 4:23-11:7; EX A
5 March 4, 2015 at 136:3-137:21). The jurors heard that testimony, listened to the musical
6 excerpts, and reached the correct decision. There was not only not an absence of any
7 evidence to support the jury verdict, but there was overwhelming evidence supporting
8 the verdict.

Indeed, this Court has already recognized, after its Motion in Limine Rulings, that

10 there was sufficient evidence to allow the Gayes to prevail in this action. In its denial of
11 the Gayes Ex Parte Application for Interlocutory Appeal, the Court stated, as a reason
12 for its denial of the application for appeal, that the Gayes could prevail at trial even
13 though they were restricted to snippets of edited sound recordings. (Dkt. No. 251 at 9).

Finally, on damages, the jurors heard from Nancie Stern, who explained that the

14

15 use of Got to Give it Up in Blurred Lines would have resulted in 50%

16 ownership/licensing fee being granted to the Gayes if a license had been negotiated
17 before release of Blurred Lines, and a much higher percentage after release. (Busch
18 Decl. Exhibit I, Trial Tr. March 3, 2015 at 27:18-22, 28:16-22). The parties agreed that
19 the publishing revenue for Blurred Lines was $6.38 million with professional fees
20 subtracted. (Busch Decl. Exhibit I, Trial Tr. March 3, 2015 at 43:25-45:20).7 The Gayes
21 financial expert, Gary Cohen testified that without professional fees subtracted, the
22 publishing revenue for Blurred Lines was over $8 million. (Busch Decl. Exhibit I,
23 Trial Tr. March 3, 2015 at 48:4-21). Thus, the $4 million actual damage award was not
24
25

Despite Mr. Williams saying that a bass and keyboard running together throughout a

26 song as they do in Got to Give it Up and Blurred Lines is common, Plaintiffs did not
27 submit even one example that sounds remotely the same as the bass line and keyboard
28

combination in Got to Give it Up and Blurred Lines sound to each other.

7
This stipulation was also submitted to the jury as Exhibit 1766.
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1 only supported by Ms. Stern and Mr. Cohens testimony, but was modest, and a much
2 higher award would have been justified.
3

The $3.38 million profit award was also more than justified and supported by the

4 evidence. The jury heard about how Robin Thicke and UMG marketed Blurred Lines
5 by evoking Marvin Gaye and Got to Give it Up from the beginning, and how the song
6 copied Got to Give it Up. They also heard Robin Thicke admit that he only began
7 mentioning Got to Give it Up when people began connecting the two songs, and that
8 he will say in his interviews whatever he needs to say in order to sell records. (Busch
9 Decl. Exhibit I, Trial Tr. Feb. 25, 2015 at 103:23-104:4, 105:12-106:12). He obviously
10 thus understood that tying Blurred Lines to Got to Give it Up would sell records
11 because he began mentioning Got to Give it Up in his promotional interviews right
12 from the very first interview he gave, and repeated those statements many times
13 thereafter. His message, from the very start, was that Blurred Lines was Got to Give
14 it Up Part 2, and he stated as much in his interviews. (Busch Decl. Exhibit F, Trial Tr.
15 Feb. 25, 2015 at 95:12-22). Nicole Bilzerian, who headed UMGs marketing of Blurred
16 Lines, stated that a consistent message from the artist is vital in marketing and
17 promoting music, and Mr. Thickes message was to tie Blurred Lines and Got to
18 Give it Up into a single song. (Busch Decl. Exhibit A, Trial Tr. March 4, 2015 at 12:1919 22).
20

Finally, the copying of the musical elements of Got to Give it Up also supports

21 the profit award. The jury heard how some element of Got to Give it Up runs
22 throughout Blurred Lines. The jury award is more than supported by the evidence,
23 and in no way is grossly excessive. Trulsson v. Cnty. of San Joaquin Dist. Attorneys
24 Office, No. 2:11-CV-02986 KJM, 2014 WL 4748117, at *12 (E.D. Cal. Sept. 23, 2014)
25 (jury award must be grossly excessive).
26
27

II. CONCLUSION
Based on the foregoing, the Gayes respectfully request this Court immediately and

28 permanently enjoin Plaintiffs and Counter-Defendants from reproducing, distributing,

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1 performing, displaying, and preparing derivative works of the infringing work Blurred
2 Lines, or authorizing any third-party to do the same, and impound any and all infringing
3 articles containing the composition Blurred Lines, including all copies of the sound
4 recording Blurred Lines.
5
6 Dated: March 17, 2015

Respectfully submitted,

KING & BALLOW

8
9
10
11

By: /s/ Richard S. Busch

RICHARD S. BUSCH
PAUL H. DUVALL
SARA R. ELLIS

12

WARGO & FRENCH, LLP

13

By: /s/ Mark L. Block

MARK L. BLOCK

14
15
16
17

Attorneys for Defendants and Counter-Claimants

Nona and Frankie Gaye
THE LAW OFFICES OF PAUL N. PHILIPS

18
19

By: /s/ Paul N. Philips

PAUL N. PHILIPS

20
21

Attorney for Defendant and Counter-Claimant

Marvin Gaye III

22
23
24
25
26
27
28

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