Williams V Gaye Petition For Rehearing en Banc

Case: 15-56880, 04/11/2018, ID: 10833585, DktEntry: 97, Page 1 of 138
No. 15-56880
Nos. 16-55089, 16-55626 (consolidated)
IN THE
FOR THE NINTH CIRCUIT
PHARRELL WILLIAMS, ET AL.,

Plaintiffs-Appellants-Cross-Appellees,
v.
FRANKIE CHRISTIAN GAYE, ET AL.,
Defendants-Appellees-Cross-Appellants.
On Appeal From The United States District Court

For The Central District of California
Hon. John A. Kronstadt, District Judge
No. 13-cv-06004 JAK (AGRx)
PETITION FOR REHEARING EN BANC

Date of Decision: March 21, 2018
Judges: M. Smith Jr., Murguia, and Nguyen
Howard E. King Kathleen M. Sullivan

Stephen D. Rothschild Ellyde R. Thompson
Seth Miller QUINN EMANUEL URQUHART
KING, HOLMES, PATERNO & SULLIVAN, LLP
& SORIANO, LLP 51 Madison Ave., 22nd Floor
1900 Avenue of the Stars, New York, NY 10010
25th Floor (212) 849-7000
Los Angeles, CA 90067
(310) 282-8989 Daniel C. Posner
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
865 South Figueroa St., 10th Floor
Los Angeles, CA 90017
April 11, 2018 (213) 443-3000
TABLE OF CONTENTS
Page
INTRODUCTION AND RULE 35(b) STATEMENT.............................................. 1
BACKGROUND ....................................................................................................... 3
ARGUMENT ............................................................................................................. 6
I. THE PANEL MAJORITY’S DECISION CONFLICTS WITH THIS
COURT’S COPYRIGHT PRECEDENTS ...................................................... 6
A. The Panel Majority’s Decision Conflicts With This Court’s

Prior Decisions On Broad And Thin Copyright Protection .................. 7
B. The Panel Majority’s Decision Conflicts With This Court’s
Prior Decisions On Substantial Similarity ............................................ 9
C. The Procedural Posture Of The Case Does Not Preclude
Review Of These Issues ...................................................................... 12
II. THE PANEL MAJORITY’S DECISION WILL HAVE A CHILLING
EFFECT ON MUSICAL CREATIVITY AND RAISES ISSUES OF
EXCEPTIONAL IMPORTANCE ................................................................. 15
CONCLUSION ........................................................................................................ 18
TABLE OF AUTHORITIES
Page
Cases
Apple Computer, Inc. v. Microsoft Corp.,
35 F.3d 1435 (9th Cir. 1994) .......................................................................2, 8
Benay v. Warner Bros. Entm’t,

607 F.3d 620 (9th Cir. 2010) .....................................................................2, 10
Escriba v. Foster Poultry Farms, Inc.,
743 F.3d 1236 (9th Cir. 2014) .......................................................................14
Ets-Hokin v. Skyy Spirits Inc.,

323 F.3d 763 (9th Cir. 2003) .......................................................................2, 8
Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,

49 U.S. 340 (1991).........................................................................................17
First Nat’l Mortg. Co. v. Fed. Realty Inv. Trust,

631 F.3d 1058 (9th Cir. 2011) .......................................................................14
Funky Films, Inc. v. Time Warner Entm’t Co.,

462 F.3d 1072 (9th Cir. 2006) ...................................................................2, 10
Mattel v. MGA Entm’t, Inc.,

616 F.3d 904 (9th Cir. 2010) .................................................................. 2, 7, 8
Newton v. Diamond,
388 F.3d 1189 (9th Cir. 2004) ...................................................................2, 10
Ortiz v. Jordan,
562 U.S. 180 (2011).......................................................................................13
Rentmeester v. Nike, Inc.,

883 F.3d 1111 (9th Cir. 2018) ............................................................ 2, 10, 18
Rice v. Fox Broad. Co.,

330 F.3d 1170 (9th Cir. 2003) ...................................................................3, 10
Satava v. Lowry,
323 F.3d 805 (9th Cir. 2003) .......................................................................2, 8
ii
Swirsky v. Carey,
376 F.3d 841 (9th Cir. 2003) ................................................................ 3, 4, 10
VMG Salsoul, LLC v. Ciccone,

824 F.3d 871 (9th Cir. 2016) .....................................................................2, 10
Constitution and Rules

Fed. R. Civ. P. 50(a).......................................................................................... 12, 14
U.S. Const. art. I, § 8, cl. 8 .......................................................................................17
Other Authorities
Andy Hermann,
Beyond “Blurred Lines”: How Forensic Musicology is Altering Pop’s
Future,
Rolling Stone (Apr. 4, 2018) ............................................................ 11, 16, 17
Eric Grubbs,
“Blurred Lines” Is Musical Theft? Some Dallas Musicians Disagree,
Dallas Observer (Mar. 27, 2018) ............................................................ 16, 18
Mark Swed,
“Blurred Lines” verdict would rock Amadeus and other great
composers,
Los Angeles Times (Mar. 14, 2015) ..............................................................15
Tim Wu,
Why the ‘Blurred Lines’ Copyright Verdict Should Be Thrown Out,
The New Yorker (Mar. 12, 2015) ..................................................................15
iii
INTRODUCTION AND RULE 35(b) STATEMENT

The sharply divided panel in this case affirmed a judgment that Pharrell
Williams and Robin Thicke infringed the musical composition copyright in Marvin
Gaye’s 1977 song “Got To Give It Up” with their 2013 song “Blurred Lines.”
Williams v. Gaye, __ F.3d __, 2018 WL 1403577 (9th Cir. Mar. 21, 2018) (“Slip
op.”) (Addendum A). The panel did so even though the two songs share none of
the same melodies, chords, harmonies, rhythms, or lyrics, and indeed do not have
any two allegedly copied notes that are the same (i.e., same pitch, duration, and
placement in the measure). This Court’s copyright precedents provide no basis for
this travesty or its chilling effect on musical creativity. As Judge Nguyen shows in
devastating detail in her dissent, “‘Got to Give It Up’ and ‘Blurred Lines’ are
objectively dissimilar.” Slip op. 79; see id. at 66-79. The panel majority’s
decision warrants en banc review because it conflicts with this Court’s prior
copyright decisions and presents issues of exceptional importance, especially to the
music and other creative industries heavily concentrated within this Circuit.
First, the panel majority’s decision conflicts with this Court’s longstanding
“analytic dissection and filtration” framework, which holds that, in every copyright
case, a court must “filter out” protectable from unprotectable elements, and then
decide whether the remaining protectable elements at issue in a particular work are
entitled to thin protection (in which case the works must be “virtually identical” to
give rise to actionable infringement) or broad protection (in which case the works
must be “substantially similar” to give rise to actionable infringement). See, e.g.,
Mattel v. MGA Entm’t, Inc., 616 F.3d 904, 913-14 (9th Cir. 2010); Satava v.
Lowry, 323 F.3d 805, 812-13 (9th Cir. 2003); Ets-Hokin v. Skyy Spirits Inc., 323
F.3d 763, 766 (9th Cir. 2003); Apple Computer, Inc. v. Microsoft Corp., 35 F.3d
1435, 1439, 146-47 (9th Cir. 1994). The panel majority’s decision conflicts with
this settled law in holding that musical compositions are categorically entitled to
broad copyright protection, no matter how few protectable elements were allegedly
copied. Slip op. 18-20.
Second, the panel majority’s decision conflicts with this Court’s
longstanding “extrinsic” test, under which a court must compare the works to
determine whether, from an objective point of view, the works are sufficiently
similar to give rise to actionable infringement as a matter of law. If not, it is
neither necessary nor appropriate to submit the case to a jury. As this Court has
long recognized, judges play a critical gatekeeper role in this regard, to prevent the
specter of liability from chilling creative expression. See, e.g., Rentmeester v.
Nike, Inc., 883 F.3d 1111, 1118-23 (9th Cir. 2018); VMG Salsoul, LLC v. Ciccone,
824 F.3d 871, 877-79 (9th Cir. 2016); Benay v. Warner Bros. Entm’t, 607 F.3d
620, 624-29 (9th Cir. 2010); Funky Films, Inc. v. Time Warner Entm’t, 462 F.3d
1072, 1076-77 (9th Cir. 2006); Newton v. Diamond, 388 F.3d 1189, 1192-96 (9th
2
Cir. 2004); Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir. 2003); Rice v. Fox
Broad. Co., 330 F.3d 1170, 1174-80 (9th Cir. 2003). Here, the district court sent
the case to a jury without undertaking this threshold legal inquiry, and the panel
majority in turn refused to undertake that inquiry on appeal. Had the panel
majority done so, it would have been constrained to conclude that the alleged
similarities here do not rise to the level of actionable infringement as a matter of
law.
Finally, the issues presented have exceptional importance in light of the
chilling effect the judgment in this case has on musical expression. As Judge
Nguyen explained, “by refusing to compare the two works, the majority establishes
a dangerous precedent that strikes a devastating blow to future musicians and
composers everywhere.” Slip op. 57. Given that this Circuit is the nerve center of
the music industry in the United States, if not the world, en banc review is
warranted.
BACKGROUND
This case involves the song “Blurred Lines” composed by plaintiffs
Williams, Thicke, and Harris, which topped the charts in the United States and
around the world in 2013, and became one of the best-selling singles of all time.
In the wake of that success, Marvin Gaye’s heirs asserted that the song infringed
the copyright in Gaye’s 1977 song “Got To Give It Up.” In response, plaintiffs
3
filed this lawsuit seeking a declaratory judgment of non-infringement, and the
Gayes responded with infringement counterclaims.
Plaintiffs moved for summary judgment on the ground that, as a matter of
law, the two songs are not sufficiently similar to give rise to actionable
infringement, even if individual elements of the songs are similar. The district
court (Kronstadt, J.) denied the motion. ER110-37 (Addendum B). The court
acknowledged that the copyrighted expression here is limited to the sheet music
registered and deposited with the Copyright Office in 1977, and does not extend to
the sound recording of “Got To Give It Up.” ER116-21. The court also
acknowledged that the requisite inquiry into similarity applies only to the
protectable elements of the work. ER116, 132 (citing Swirsky, 376 F.3d at 845).
The court identified just five elements of the copyrighted sheet music of
“Got To Give It Up” that, in the court’s view, qualified for copyright protection:
“[1] 11-note signature phrase, [2] four-note hook, [3] four-bar bass line, [4] 16-bar
harmonic structure and [5] four-note vocal melody.” ER133. The court did not,
however, undertake any comparison of those five elements to any corresponding
features of the sheet music of “Blurred Lines.” Instead, the court summarily
concluded that “[t]here are disputes, supported by competing expert analyses, as to
the similarity of individual elements of each song.” Id.; see also id. (“The separate
analyses of [the various experts] of ‘Got to Give It Up’ and ‘Blurred Lines’
4
provide indicia of a sufficient disagreement concerning their substantial similarity
to present a genuine issue of material fact.”) (internal quotation omitted).
The case proceeded to a seven-day jury trial in early 2015, resulting in a
verdict finding plaintiffs Williams and Thicke liable for copyright infringement.
ER61. The jury awarded the Gayes $4 million in damages, plus an additional $3.4
million in lost-profits damages from Williams and Thicke. ER62. The district
court denied Williams’ and Thicke’s post-trial motion for judgment as a matter of
law or new trial, but remitted the damages to $5.3 million. ER58-59. The court
also entered a declaratory judgment that any past and ongoing reproduction or
exploitation of “Blurred Lines” infringes the Gayes’ copyright, and awarded the
Gayes a “running royalty” of 50% of Williams’ and Thicke’s future royalties from
the song. ER43, 53, 58-59.
On appeal, a sharply divided panel of this Court affirmed in relevant part.
The panel majority began by holding that “musical compositions” are categorically
entitled to broad copyright protection as a matter of law, regardless of the scope of
protectable elements in a particular work. Slip op. 18-20. And the panel majority
then refused to address plaintiffs’ argument that, as a matter of law, the works here
are not sufficiently similar to give rise to actionable infringement. Id. at 22-24, 47-
51. Rather, the panel couched its affirmance as required by the “procedural
5
posture of the case” and the “limited nature of our appellate review.” Id. at 56; see
id. at 22-24, 47-56.
In dissent, Judge Nguyen explained that the majority had erred in “refusing
to compare the two works,” and “fail[ing] to engage” plaintiffs’ argument that any
similarities between the two works are objectively “insufficient to support a
finding of substantial similarity as a matter of law.” Slip op. 57-58 (Nguyen, J.,
dissenting). Reviewing the Gayes’ musicological expert testimony in meticulous
detail, Judge Nguyen concluded that asserted elements such as “repeated notes,”
“two- and three-note melodic snippets,” a “rhythm of six eighth notes,” and a four-
pitch “hook phrase” are musically commonplace and individually unprotectable
(id. at 67-70, 73) and that, even if protectable, the asserted elements are “not
substantially similar” (id. at 71-72 (“signature phrases” as a whole), 76 (“theme
X”), 76-77 (keyboard parts), 79 (overall structure); see generally id. at 65-79).
ARGUMENT
I. THE PANEL MAJORITY’S DECISION CONFLICTS WITH THIS
COURT’S COPYRIGHT PRECEDENTS
En banc review is warranted to prevent the emergence of a “Blurred Lines”
exception to this Court’s longstanding copyright jurisprudence, which requires
courts (1) to determine the scope of copyright protection in each case (whether or
not musical compositions are involved) after filtering out the unprotectable
elements from a particular work, and (2) to engage in an objective comparison of
6
the works to determine whether a case for actionable infringement may proceed as
a matter of law. Because the panel decision conflicts with settled Circuit law on
both of these important and recurring issues, en banc review is warranted.
A. The Panel Majority’s Decision Conflicts With This Court’s Prior

Decisions On Broad And Thin Copyright Protection
The panel majority declared that “musical compositions” are categorically
entitled to “broad” protection as a rule, regardless of whether the elements of a
particular composition alleged to have been copied are protectable. Slip op. 18-20.
That holding represents a marked break from this Court’s precedents, which have
never before singled out an entire genre of artistic expression for differential
treatment under copyright law. En banc review is warranted to decide whether
musical compositions are thus sui generis for purposes of copyright law, or should
be treated like any other form of artistic expression.
This Court has long held that the threshold question whether a particular
work is entitled to thin or broad copyright protection depends not categorically on
genre but rather on the extent to which the elements of that work are protectable in
the particular case. See, e.g., Mattel, 616 F.3d at 915 (“In order to determine the
scope of protection for the sculpt, we must first filter out any unprotectable
elements.”). A work with only a few protectable elements is entitled only to thin
protection (obligating the copyright holder to prove “virtual identity” between the
works); a work with many protectable elements, in contrast, is entitled to broad

7
protection (requiring only a showing of “substantial similarity”). See, e.g., Mattel,
616 F.3d at 913-14; Satava, 323 F.3d at 812-13; Ets-Hokin, 323 F.3d at 766;
Apple, 35 F.3d at 1439, 1446-47.
The panel majority departed from these precedents in setting the breadth or
narrowness of copyright protection based upon the medium of expression, as
opposed to the scope of protectable elements at issue in the particular case. For
example, sculpture generally is “not confined to a narrow range of expression,”
Slip op. 19, but the doll sculpts at issue in Mattel and the jellyfish sculpture in
Satava were entitled to only thin protection because most of the relevant
expression was unprotectable, see 616 F.3d at 915; 323 F.3d at 812-13; see
generally Slip op. 62-63 (Nguyen, J., dissenting).
The decision here conflicts with those precedents. The Gayes identified
only a handful of short melodic snippets alleged to be similar, and plaintiffs argued
that the copyright protection was thin because “the copyrighted work has few
protectable expressions left after the court has filtered out unprotected ideas or
standard expressions.” Pls.’ Br., Dkt. 15, at 30 (citing authorities). But the panel
responded with a sweeping holding that “the standard of similarity for musical
compositions” as a class is “broad,” Slip op. 18 (capitalization modified), thus
giving music copyrights supremacy over other forms of copyrighted expression
even where (as here) few protectable elements remain after the required filtration.
8
The panel majority missed the point in asserting that this Court has “applied the
substantial similarity standard to musical infringement suits before.” Slip op. 20.
This Court has never before suggested that all musical copyright infringement
claims are categorically entitled to broad copyright protection precluding the
requirement of virtual identity in a particular case. If anything, music is composed
from indispensable, commonplace elements more often than other genres given
that there are only 12 notes in the Western musical scale. See Slip op. 68 & n.34
(Nguyen, J., dissenting).
The panel majority’s departure from precedent was material here, because
the asserted elements of “Blurred Lines” and “Got To Give It Up” could not
possibly be found “virtually identical.” En banc review is warranted to address the
the panel majority’s holding that, with respect to the scope of copyright protection,
musical compositions enjoy different treatment than other forms of artistic
expression.
B. The Panel Majority’s Decision Conflicts With This Court’s Prior

Decisions On Substantial Similarity
As Judge Nguyen noted, there are “only a few features that are present in
both works,” these features largely “aren’t individually protectable,” and, “when
considered in the works as a whole, these similarities aren’t even perceptible, let
alone substantial.” Slip op. 65. Nonetheless, the panel majority, like the district
court, refused to compare the two works to determine whether the protectable
9
elements are sufficiently similar to give rise to actionable infringement as a matter
of law. That decision conflicts with this Court’s settled requirement that a district
court must, before sending a copyright case to a jury, compare the works to
determine whether, from an objective (or “extrinsic”) point of view, they are
sufficiently similar under any standard to give rise to actionable infringement.
This Court’s precedents establish that a court plays a critical gatekeeper role
in a copyright infringement case: where the court determines as a threshold matter
that the works are not sufficiently similar to give rise to actionable infringement,
the alleged infringer is entitled to judgment as a matter of law and it is neither
necessary nor appropriate to send the case to a jury. See, e.g., Rentmeester, 883
F.3d at 1118-23; VMG, 824 F.3d at 877-79; Benay, 607 F.3d 624-29; Funky Films,
462 F.3d at 1076-77; Newton, 388 F.3d at 1192-96; Swirsky, 376 F.3d at 845; Rice,
330 F.3d at 1174-80. For this reason, summary judgment is “frequently”
appropriate in copyright infringement cases, Funky Films, 462 F.3d at 1076-77
(internal quotation omitted), and a district court may even find lack of substantial
similarity at the pleading stage, Rentmeester, 883 F.3d at 1118-23.
Plaintiffs argued on appeal that the district court erred by refusing to engage
in such a comparison and instead submitting the issue of similarity issue to the jury
without undertaking a threshold legal determination on that score. See Pls.’ Br. 27-
29 (“The District Court Erred In Failing To Compare The Two Works.”). The
10
panel majority itself likewise refused to engage in such a comparison. Slip op. 22-
24, 33-35, 47-51. The panel majority’s judgment cannot be squared with this
Court’s many precedents holding that “substantial similarity” is a threshold legal
question as to whether the protectable elements of the copyrighted work are
sufficiently similar to the accused work to give rise to actionable infringement.
Again, the panel’s departure from precedent was material here: the district
court’s failure to make an objective comparison of the works before proceeding to
jury trial resulted in a trial where the jury was subjected to a mystifying haze of
musicological obfuscation in which the Gayes’ expert found “implied” musical
elements that were not notated in the lead sheet and “shift[ed] and invert[ed] the
pitches” in the songs in “a feat of musical gymnastics well beyond the skill of most
listeners,” Slip op. 76 (Nguyen, J., dissenting). The district court compounded the
problem by inviting the jury to consider musical elements ranging far beyond those
covered by the copyrighted lead sheet, and the panel majority declined to correct
either the evidentiary or instructional error, see Slip op. 27-33. Thus “many
industry experts … say that the jury [in this case] chose to award damages based
on secondary similarities between the two tracks—their ‘look and feel and
cowbells,’…—rather than their lyrics, melody and other elements more commonly
considered protectable under copyright law.” Andy Hermann, Beyond “Blurred
Lines”: How Forensic Musicology is Altering Pop’s Future, Rolling Stone (Apr. 4,
11
2018), available at https://www.rollingstone.com/music/features/music-copyright-
after-blurred-lines-experts-speak-out-w518206. This Court’s “extrinsic” test for
substantial similarity was adopted to prevent just such a threat to creative freedom.
C. The Procedural Posture Of The Case Does Not Preclude Review

Of These Issues
The panel majority here misapprehended the threshold legal inquiry into
whether the works are sufficiently similar to support actionable infringement,
deeming the “substantial similarity” inquiry “a factbound inquiry” that essentially
challenges the sufficiency of the evidence. And because plaintiffs did not move at
trial for judgment as a matter of law under Rule 50(a) before submission of the
case to the jury, the panel held, they could not argue that they were entitled to
judgment as a matter of law on appeal. Slip op. at 22-23, 47-51.
That approach fundamentally misperceives the underlying substantive law,
for the threshold question whether a copyrighted work is objectively similar to the
accused work is a question of law, not fact. With both works before it, a court has
all the evidence it needs to filter out the unprotectable elements of the copyrighted
work and make a legal judgment whether the alleged similarity gives rise to
actionable infringement as a matter of law. In that way, the court plays a critical
gatekeeper role in copyright cases, and not everyone who alleges that a popular
song, book, or movie is substantially similar to their own work is entitled to
present that claim to a jury, even if they can find a paid expert to support the claim.
12
Thus, the procedural posture of this case presents no barrier to determining
whether “Blurred Lines” is substantially similar to “Got To Give It Up” as a matter
of law. Ortiz v. Jordan, 562 U.S. 180, 189 (2011), does not foreclose review of a
summary judgment denial after trial based on a “purely legal issue[] capable of
resolution with reference only to undisputed facts,” and this Court may reverse the
denial of summary judgment here on the ground that the district court committed
legal error in failing to engage in the requisite comparison. And error it was
(indeed, as Judge Nguyen pointed out, “plain error,” Slip op. 81 n.39): after
filtering out the protectable elements of the copyrighted work, the court simply
declared that both sides had presented experts on both sides of the similarity issue.
But experts are qualified to address the factual aspects of similarity, not to address
the legal question whether the asserted similarity is actionable. See Slip op. 82
(Nguyen, J., dissenting) (citing authorities).
The panel majority thus missed the point by declaring that it could not
review the denial of summary judgment after a trial on the merits. See Slip op. 22-
24. The panel majority was certainly right that “[o]nce [a] case proceeds to trial,
the full record developed in court supersedes the record existing at the time of the
summary-judgment motion.” Id. at 22 (quoting Ortiz, 562 U.S. at 184). But
plaintiffs’ grievance here has nothing to do with the record. Rather, as noted
above, plaintiffs are challenging the district court’s refusal to compare the
13
protectable elements of the copyrighted work to the accused work to make an
objective determination on similarity. Once the district court denied plaintiffs’
motion for summary judgment on this score, plaintiffs had no further need to ask
the court once again for judgment as a matter of law to preserve the issue for
appeal. See, e.g., Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1243 (9th
Cir. 2014); First Nat’l Mortg. Co. v. Fed. Realty Inv. Trust, 631 F.3d 1058, 1064-
65 (9th Cir. 2011) (citing authorities).
Plaintiffs here are not challenging the sufficiency of the evidence, and hence
the panel majority’s opinion that the lack of a Rule 50(a) motion bars appellate
review is inapposite to the issues on appeal. As Judge Nguyen explained, “there
were no material factual disputes at trial.” Slip op. 58. Plaintiffs challenge the
legal conclusion that there is actionable similarity between the protectable
elements in the sheet music for “Got To Give It Up” and the corresponding
musical elements of “Blurred Lines.”
Had the panel majority acknowledged that plaintiffs were making a legal
argument challenging the district court’s application of the objective test for
substantial similarity, and compared the two works, it would have been constrained
to rule in plaintiffs’ favor as a matter of law. For the reasons explained in Judge
Nguyen’s dissent, this case does not involve actionable infringement. See Slip op.
65-79. In particular, the “signature” phrase, the “hook” phrase, and “Theme X” are
14
either not protectable or not substantially similar. See id. at 66-76. Nor is there
any substantial similarity in the overall arrangement of unprotectable elements, see
id. at 79; indeed, the two songs do not even sound alike (compare ER2307 with
ER2445). As Judge Nguyen put it, the analysis presented by the Gayes’ expert “is
the equivalent of finding substantial similarity between two pointillist paintings
because both have a few flecks of similarly colored paint.” Id. at 58. Thus, “[a]
comparison of the deposit copy of ‘Got to Give It Up’ and ‘Blurred Lines’ under
the extrinsic test leads to only one conclusion”: plaintiffs are “entitled to judgment
as a matter of law.” Id.
II. THE PANEL MAJORITY’S DECISION WILL HAVE A CHILLING

EFFECT ON MUSICAL CREATIVITY AND RAISES ISSUES OF
EXCEPTIONAL IMPORTANCE
The original verdict of infringement in this case generated widespread
outcry in the music community.1 As plaintiffs’ amici before the panel warned, the
verdict had the effect of “stifl[ing] creativity and imped[ing] the creative process.”
Br. of 212 Songwriters, Composers, Musicians & Producers, Dkt. 22, at 2. The
1
See, e.g., Tim Wu, Why the ‘Blurred Lines’ Copyright Verdict Should Be
Thrown Out, The New Yorker (Mar. 12, 2015), available at
http://www.newyorker.com/culture/culture-desk/why-the-blurred-lines-copyright-
verdict-should-be-thrown-out (“[T]he borrowing of styles is too important an
expressive freedom to be subject to federally enforced censorship.”); Mark
Swed,“Blurred Lines” verdict would rock Amadeus and other great composers,
Los Angeles Times (Mar. 14, 2015), available at
http://www.latimes.com/entertainment/arts/la-et-cm-blurred-lines-classical-
notebook-20150314-column.html (“Pop music artists and critics are properly
incensed over the ‘Blurred Lines’ mess.”).
15
panel majority’s decision has now elicited a similar reaction. As a recent Rolling
Stone article noted, “the ‘Blurred Lines’ verdict has … generated a great deal of
uncertainty in the music industry over where the line between inspiration and
imitation now lies,” and “the business of pop may never be the same.” Hermann,
supra. And as another commentator warned, “If you’re a musician and are not
worried that a court recently upheld the verdict on ‘Blurred Lines,’ you should be.”
Eric Grubbs, “Blurred Lines” Is Musical Theft? Some Dallas Musicians Disagree,
Dallas Observer (Mar. 27, 2018), available at
http://www.dallasobserver.com/music/dallas-musicians-chris-holt-believes-robin-
thicke-shouldnt-have-been-sued-by-marvin-gayes-family-10501294.
The chilling effect of the decision cannot be overstated. Music consists of
the arrangement of a limited number of notes into the basic building blocks of
melody, harmony, and rhythm. Given the limited universe of notes, it is inevitable
that different musical compositions will share certain common melodies,
harmonies, and/or rhythms. Many songs have a similar sound or vibe; indeed,
there are probably few people who have never heard at least part of a song on the
radio and mistaken it for another song. Entire genres of music (e.g., country, hip
hop) share many common features. Indeed, a genre is defined by its common
features, e.g., the rhythms, harmonies, and melodic stylings of blues songs are
what make it the blues, as opposed to, e.g., country music or Broadway show tunes.
16
The panel majority’s decision thus raises a question of great importance:
whether copyright law allows musical composers to “copyright a musical style.”
Slip op. at 57 (Nguyen, J., dissenting). Composers have long been free to draw
inspiration from previous compositions, and even to copy discrete elements
without fear of copyright liability. That comports with the “primary objective of
copyright”: “‘[t]o promote the Progress of Science and useful Arts’” by
“encourag[ing] others to build freely upon the ideas and information conveyed by a
work.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 49 U.S. 340, 349-50 (1991)
(quoting U.S. Const. art. I, § 8, cl. 8). The panel majority’s decision threatens to
upset the “delicate balance between the protection to which authors are entitled
under an act of Congress and the freedom that exists for all others to create their
works outside the area protected against infringement.” Rentmeester, 883 F.3d at
1124 (internal quotation omitted).
Similarly important is the institutional question whether freedom of creative
expression should be left to the mercy of jurors’ whims and paid musicological
experts. If a copyright holder can now get to a jury simply by proffering an expert
to opine that a song’s elements are substantially similar to an accused song,
without any objective comparison by the court, no musical work is safe from the
prospect of copyright liability. See, e.g., Hermann, supra; Grubbs, supra (“What
should you be concerned about as a musician? Plenty. Apparently inspiration is
17
subject to lawsuit, no matter which key your song is in or which chords you use.”).
And the prospect of increased copyright litigation and in terrorem settlements has
outsized importance in this Circuit, the nerve center of the Nation’s creative
industries.
En banc review is warranted.
CONCLUSION
For the foregoing reasons, this Court should grant the petition.
April 11, 2018 Respectfully submitted,
s/ Kathleen M. Sullivan
Kathleen M. Sullivan
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
51 Madison Avenue, 22nd Floor
New York, NY 10010
18

Williams V Gaye Petition For Rehearing en Banc

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Williams V Gaye Petition For Rehearing en Banc

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Case: 15-56880, 04/11/2018, ID: 10833585, DktEntry: 97, Page 1 of 138

FOR THE NINTH CIRCUIT

PHARRELL WILLIAMS, ET AL.,

On Appeal From The United States District Court

PETITION FOR REHEARING EN BANC

Howard E. King Kathleen M. Sullivan

A. The Panel Majority’s Decision Conflicts With This Court’s

Benay v. Warner Bros. Entm’t,

Ets-Hokin v. Skyy Spirits Inc.,

Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,

First Nat’l Mortg. Co. v. Fed. Realty Inv. Trust,

Funky Films, Inc. v. Time Warner Entm’t Co.,

Mattel v. MGA Entm’t, Inc.,

Rentmeester v. Nike, Inc.,

Rice v. Fox Broad. Co.,

VMG Salsoul, LLC v. Ciccone,

Constitution and Rules

INTRODUCTION AND RULE 35(b) STATEMENT

copyright decisions and presents issues of exceptional importance, especially to the

must be “substantially similar” to give rise to actionable infringement). See, e.g.,

copied. Slip op. 18-20.

Second, the panel majority’s decision conflicts with this Court’s

similar to give rise to actionable infringement as a matter of law. If not, it is

specter of liability from chilling creative expression. See, e.g., Rentmeester v.

similarities here do not rise to the level of actionable infringement as a matter of

Finally, the issues presented have exceptional importance in light of the

a dangerous precedent that strikes a devastating blow to future musicians and

filed this lawsuit seeking a declaratory judgment of non-infringement, and the

Gayes responded with infringement counterclaims.

Plaintiffs moved for summary judgment on the ground that, as a matter of

however, undertake any comparison of those five elements to any corresponding

concluded that “[t]here are disputes, supported by competing expert analyses, as to

provide indicia of a sufficient disagreement concerning their substantial similarity

to present a genuine issue of material fact.”) (internal quotation omitted).

The case proceeded to a seven-day jury trial in early 2015, resulting in a

the song. ER43, 53, 58-59.

On appeal, a sharply divided panel of this Court affirmed in relevant part.

entitled to broad copyright protection as a matter of law, regardless of the scope of

id. at 22-24, 47-56.

similarities between the two works are objectively “insufficient to support a

dissenting). Reviewing the Gayes’ musicological expert testimony in meticulous

pitch “hook phrase” are musically commonplace and individually unprotectable

substantially similar” (id. at 71-72 (“signature phrases” as a whole), 76 (“theme

exception to this Court’s longstanding copyright jurisprudence, which requires

elements from a particular work, and (2) to engage in an objective comparison of

both of these important and recurring issues, en banc review is warranted.

A. The Panel Majority’s Decision Conflicts With This Court’s Prior

entitled to “broad” protection as a rule, regardless of whether the elements of a

treatment under copyright law. En banc review is warranted to decide whether

be treated like any other form of artistic expression.

work is entitled to thin or broad copyright protection depends not categorically on

works); a work with many protectable elements, in contrast, is entitled to broad

protection (requiring only a showing of “substantial similarity”). See, e.g., Mattel,

Apple, 35 F.3d at 1439, 1446-47.

narrowness of copyright protection based upon the medium of expression, as

example, sculpture generally is “not confined to a narrow range of expression,”

generally Slip op. 62-63 (Nguyen, J., dissenting).

compositions” as a class is “broad,” Slip op. 18 (capitalization modified), thus

giving music copyrights supremacy over other forms of copyrighted expression

claims are categorically entitled to broad copyright protection precluding the

requirement of virtual identity in a particular case. If anything, music is composed

(Nguyen, J., dissenting).

possibly be found “virtually identical.” En banc review is warranted to address the