Case 2:13-cv-06004-JAK-AGR Document 376 Filed 05/01/15 Page 1 of 16 Page ID

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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, APLC
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 DECLARATORY
RELIEF
Motion Hearing:
Date: June 29, 2015
Time: 8:30 am
Ctrm: 750
Action Commenced: August 15, 2013
Trial Date: February 24, 2015

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TABLE OF CONTENTS

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

3 NOTICE OF MOTION AND MOTION ................................................................................... 1
4 I.

INTRODUCTION ............................................................................................................ 2

5 II.

ARGUMENT .................................................................................................................... 6

A.

The Court Appropriately Determines Equitable Issues Like Declaratory

Relief Following a Jury Trial, But is also Required Under the Seventh

Amendment to Follow the Jurys Explicit or Implicit Determinations ......... 6

B.

Standard of Review for Declaratory Relief.................................................... 6

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C.

This Court Should Confirm the Jurys Finding that Thicke and the Williams
Parties are Liable to the Gayes for Copyright Infringement .......................... 7

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D.

This Court Should Confirm its Prior Statements During Trial and Declare

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Harris and the Interscope Parties Liable for Infringement of Got to Give it

14

Up ................................................................................................................. 8

15 III.

CONCLUSION ............................................................................................................... 11

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TABLE OF AUTHORITIES

1
2 Cases

3 Accentra Inc. v. Staples, Inc., 851 F. Supp. 2d 1205 (C.D. Cal. 2011) aff'd in part, rev'd
4

in part and remanded, 500 F. App'x 922 (Fed. Cir. 2013) ............................................... 6

5 Bilbrey by Bilbrey v. Brown, 738 F.2d 1462 (9th Cir. 1984) ............................................. 7
6 Costello Pub. Co. v. Rotelle, 670 F.2d 1035 (D.C. Cir. 1981) ........................................... 9
7 Dish Network L.L.C. v. Sonicview USA, Inc., No. 09-CV-1553-L WVG, 2012 WL
8

4339047 (S.D. Cal. Sept. 20, 2012) ............................................................................... 9

9 Duel Corp. v. Osram Sylvania, Inc., No. CIV 95-1750PHXEHC(R), 2000 WL 33709291
10

(D. Ariz. Apr. 13, 2000)................................................................................................. 6

11 Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103
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(9th Cir. 1987)................................................................................................................ 7

13 Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., 964 F.2d 965
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(9th Cir. 1992).............................................................................................................. 10

15 Lockheed Martin Corp. v. Network Solutions, Inc., No. CV 96-7438 DDP ANX, 1997
16

WL 381967 (C.D. Cal. Mar. 19, 1997).......................................................................... 9

17 Los Angeles Police Protective League v. Gates, 995 F.2d 1469, 1473
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(9th Cir. 1993)............................................................................................................ 7, 8

19 McGraw-Edison Co. v. Preformed Line Products Co., 362 F.2d 339 (9th Cir. 1966),
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cert. denied, 385 U.S. 919 (1966) .................................................................................. 7

21 Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913

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(2005) ........................................................................................................................... 11

23 Micro Star v. Formgen Inc., 154 F.3d 1107 (9th Cir. 1998) ........................................ 9, 11
24 Natl Automatic Laundry & Cleaning Council v. Schultz, 443 F.2d 689
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(D.C. Cir. 1971) ............................................................................................................. 7

26 Sanders v. City of Newport, 657 F.3d 772, 783 (9th Cir. 2011) ..................................... 7, 8
27 Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417
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(1984) ........................................................................................................................... 11
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1 Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine Distributors Pty. Ltd., 647 F.2d 200
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(D.C. Cir. 1981) ............................................................................................................. 9

3 United States v. State of Wash., 759 F.2d 1353 (9th Cir. 1985) ......................................... 7
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NOTICE OF MOTION AND MOTION

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Counter-Claimants Nona Marvisa Gaye, Frankie Christian Gaye, and Marvin Gaye

3 III (hereinafter the Gaye family) respectfully move this Court for a declaration, pursuant
4 to their request for declaratory relief contained in their Counterclaim, and pursuant to the
5 jurys finding that Blurred Lines infringes the copyright in Got to Give it Up, that all
6 Plaintiffs and Counter-Defendants are directly liable to the Gaye family for copyright
7 infringement.
8

Regarding Plaintiff Robin Thicke (Thicke), and Plaintiff Pharrell Williams and his

9 publishing entity, Counter-Defendant More Water from Nazareth Publishing, Inc.

10 (collectively, the Williams Parties), the jury has already determined based on
11 substantial evidence that those parties are liable for infringement. Declaratory judgment
12 should be entered against Thicke and the Williams Parties accordingly.
13

Regarding Interscope Records, UMG Recordings, Inc., Universal Music Distribution,

14 a division of Universal Music Group Distribution Corp., and Star Trak Entertainment, LLC
15 (the Interscope Parties) and Clifford Harris, Jr. (Harris), during trial, counsel for all of
16 the Plaintiffs and Counter-Defendants agreed that the Interscope Parties released,
17 manufactured, and distributed the album Blurred Lines. (See Trial Tr., March 4, 2015 at
18 164:24-165:2, attached to Busch Decl. as Exhibit A; see also Trial Tr., March 5, 2015 at
19 38:14-18, attached to Busch Decl. as Exhibit B). Based on this agreement, and in the
20 context of discussing the verdict form, and the position of the Plaintiffs and Counter21 Defendants that questions concerning contributory infringement and vicarious liability
22 should not be submitted to the jury, the Court stated that if Thicke and the Williams Parties
23 were found to be liable for copyright infringement, the Interscope Parties would also be
24 liable as a matter of law. Id. The Court specifically invited the Gaye family to file a post25 trial motion to hold the Interscope Parties liable should that eventuality occur. (Busch Decl.
26 Ex. B at 38:14-18).
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The precise factual scenario discussed at trial has occurred. Based upon the evidence

28 that Thicke and Williams created Blurred Lines themselves, with no participation from

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1 anyone else, the jury found those parties liable for copyright infringement and awarded the
2 Gaye family nearly $7.4 million. Pursuant to the Declaratory Relief request contained in
3 their Counterclaim, the Gaye family now requests that the Court confirm its statement
4 during trial and declare that the Interscope Parties (and Clifford Harris, Jr.) are also liable
5 for copyright infringement as a matter of law. Such declaratory judgment is further
6 supported by the fact that Harris and the Interscope Parties are now knowingly participating
7 in the distribution of the infringing work Blurred Lines.

MEMORANDUM OF POINTS AND AUTHORITIES

I.

INTRODUCTION

On August 15, 2013, Plaintiffs and Counter-Defendants Robin Thicke, Pharrell

10

11 Williams, and Clifford Harris, Jr. (Plaintiffs) filed a Complaint against the Gaye
12 family seeking a declaration that Plaintiffs composition and sound recording Blurred
13 Lines does not infringe the Gaye familys copyright in the composition Got to Give it
14 Up. (Dkt. No. 1). On October 30, 2013, Nona Marvisa Gaye and Frankie Christian
15 Gaye filed a counterclaim for infringement of Got to Give it Up by Blurred Lines
16 against Plaintiffs and additional Counter-Defendants, the Interscope Parties and More
17 Water From Nazareth Publishing, Inc. (Dkt. No. 14). As part of their request for relief,
18 Nona Marvisa Gaye and Frankie Christian Gaye included a claim for declaratory
19 judgment, seeking:
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A declaration that [Plaintiffs and Counter-Defendants] are directly,

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vicariously and/or contributorily liable for copyright infringement, as

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applicable;1

23 (Dkt. No. 14 at 43).

On March 10, 2015, after a seven-day trial and more than two days of

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25 deliberations, an eight-member jury unanimously found Blurred Lines infringed the

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1

On November 19, 2013, Counter-Claimant Marvin Gaye III filed his Counterclaim and
also sought a declaration that Plaintiffs and Counter-Defendants infringed Got to Give
28 it Up through Blurred Lines. (Dkt. No. 36 at 17).
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1 Gaye familys copyright in Got to Give it Up. (Dkt. No. 320 at 2-3). The jury also
2 found Thicke and the Williams Parties directly liable for the infringement and awarded
3 the Gaye family $7,378,647.19 in profits and actual damages. (Id.)
4

While the evidence at trial showed that Williams and Thicke created Blurred

5 Lines alone, it is undisputed that the Interscope Parties reproduce, sell, license, and
6 distribute Blurred Lines, and by doing so are also directly liable for copyright
7 infringement. (Dkt. No. 303 at 1, 3, 6-7). Thicke, Williams and Harris are credited as the
8 songwriters of Blurred Lines, and each co-own the copyright in the musical composition
9 Blurred Lines, and are therefore within the distribution chain of Blurred Lines. Indeed,
10 Harris has received more than $679,362.00 in mechanical and publishing royalties related to
11 Blurred Lines. (See Trial Tr., March 3, 2015, at 45:1-3, attached to Busch Decl. as
12 Exhibit C).
13

During trial, when Thicke was asked whether under your agreement with Star

14 Trak/Interscope, they manufacture and sell the records through their distributor, he
15 responded, Yes. (See Trial Tr., Feb. 25, 2015 at 80:2-5, attached to Busch Decl. as
16 Exhibit D). Thereafter, when he was asked whether Star Trak/Interscope receives
17 money for those sales of those records when theyre sold, Thicke again testified, Yes.
18 (See id. at 80:6-9). When asked Do you know who the manufacturer and distributor is
19 identified on your label copy for Blurred Lines, Thicke ultimately answered, That
20 would be Universal Music, I believe. (See id. at 80:20-81:2). Jason Gallien, the Senior
21 Vice President of Finance for UMG Recordings, Inc. (UMG), testified that Interscope,
22 the entity that released the single Blurred Lines and the album Blurred Lines, is a
23 record label under UMGs umbrella. (See Busch Decl. Ex. C at 57:15-20). Mr. Gallien
24 further testified that the Profit and Loss Statement for the album Blurred Lines included
25 all the revenues directly related to sales of the album. (See id. at 72:3-9). The Profit
26 and Loss Statement discussed by Mr. Gallien was entered as Trial Exhibit 82, page 4.
27 (See id. at 71:16-21).
28 //

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During the trial, on March 4, 2015, counsel for the Gaye family disagreed with

2 counsel for Plaintiffs and Counter-Defendants about the inclusion of jury instructions
3 explaining contributory and vicarious infringement and corresponding questions on the
4 verdict form. (See Busch Decl. Ex. A at 160:9-161:3). The Gaye family argued that any
5 or all of the Interscope Parties may be found liable of both direct infringement,
6 contributory infringement, and/or vicarious infringement. (See id.). When specifically
7 asked by the Court if it was disputed that Universal distributed the recording of
8 Blurred Lines, Plaintiffs and Counter-Defendants counsel responded No, I dont
9 think so. (See id. at 164:16-18). The Court continued, [I]f the jury finds theres
10 infringement and if Universal distributed the recording, then according to what I heard
11 Mr. Miller say, they would be liable. (See id. at 164:24-165:2). After the parties further
12 explained their positions, the Court stated, [I]f you establish infringement and its
13 undisputed that a Universal entity or entities distributed the recording, then there would
14 be liability. (See id. at 165:6-8). The Court went on to state, If Star Trak distributed,
15 then Star Trak would be directly liable. (See id. at 166:21-22).
16

During trial, on March 5, 2015, the Gaye family and Plaintiffs entered into a joint

17 stipulation outlining the distribution chain for the single Blurred Lines and the album
18 Blurred Lines. (Dkt. No. 303 at 1-13). The parties agreed, in part, to the following:
19

1.

Robin Thicke, Pharrell Williams, and Clifford Harris Jr. are credited as the

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songwriting [sic] of Blurred Lines and co-own the musical composition

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copyright in Blurred Lines in the following percentages: 22% Thicke,

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Williams 65% and Harris 13%.

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2.

Star Trak Entertainment, LLC and Interscope Records, a division of UMG

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Recordings, Inc. (UMG) formed a venture doing business as Star Trak,

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LLC (Star Trak);

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3.

Hugo.

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Star Trak Entertainment, LLC is owned by Pharrell Williams and Chad

4.

Interscope Records (Interscope) is an unincorporated division of UMG.

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5.

the album Blurred Lines.

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3

6.
7.

Star Trak Entertainment, LLC and Interscope jointly own the sound
recording of Blurred Lines.

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7

Star Trak/Interscope licenses the sound recording to UMG affiliates in

foreign territories to sell.

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5

Star Trak/Interscope released the recording and song Blurred Lines and

8.

Universal Music Distribution, a division of Universal Music Group

Distribution Corp., manufactured and distributed the single Blurred Lines

and album Blurred Lines.

10 (Dkt. No. 303). This stipulation was entered into evidence and read to the jury. (See
11 Busch Decl. Ex. B at 47:16-49:16).
12

On March, 10, 2015, the jury returned its verdict. (Dkt. No. 320). The jury found

13 Thicke and the Williams Parties liable for direct copyright infringement of Marvin
14 Gayes Got to Give it Up. (Id. at 1:15-21). Although the jury did not find Harris and
15 the Interscope Parties liable for copyright infringement, as described above, this Court
16 has already stated during trial that the Interscope Parties, and by implication, Harris,
17 would be liable for copyright infringement if Thicke and the Williams Parties were
18 found liable. (Id. at 1:22-28; see Busch Decl. Ex. A at 164:24-165:2). Accordingly, this
19 Court should resolve the Gaye familys request for declaratory relief asserted in their
20 Counterclaims by issuing a declaration: (1) confirming the jurys verdict and declaring
21 that Thicke and the Williams Parties are liable for copyright infringement; and (2)
22 confirming the Courts prior statement and declaring that Harris and the Interscope
23 Parties are liable for copyright infringement as a matter of law based on the jurys
24 finding that Blurred Lines infringes the copyright in Got to Give it Up.
25 //
26 //
27 //
28 //

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II.

ARGUMENT
A.

The Court Appropriately Determines Equitable Issues Like

Declaratory Relief Following a Jury Trial, But is also Required

Under the Seventh Amendment to Follow the Jurys Explicit or

Implicit Determinations.

The Gaye family stated an equitable claim for declaratory relief in their

7 Counterclaims, requesting the Court issue a declaration that all Plaintiffs and Counter8 Defendants are liable for infringement of the Gaye familys copyright in Got to Give it
9 Up. (Dkt. Nos. 14 at 43; 36 at 17). In cases such as this one involving both legal claims,
10 such as copyright infringement, and equitable claims, such as a request for declaratory
11 relief, the Court may decide the equitable claims following trial through a post-trial
12 motion seeking a ruling on such requested relief. See Accentra Inc. v. Staples, Inc., 851
13 F. Supp. 2d 1205, 1242 (C.D. Cal. 2011) aff'd in part, rev'd in part and remanded, 500
14 F. App'x 922 (Fed. Cir. 2013) (Ruling on equitable issues presented through a post-trial
15 Motion for Findings of Fact and Conclusions of Law for Inequitable Conduct); Duel
16 Corp. v. Osram Sylvania, Inc., No. CIV 95-1750PHXEHC(R), 2000 WL 33709291, at
17 *1 (D. Ariz. Apr. 13, 2000) (Where court addressed equitable issue pursuant to a post18 trial motion, but found the jurys verdict on the issue to be supported by sufficient
19 evidence).
20

Now that the jury has issued a verdict on the Gaye familys copyright

21 infringement claims, the Court should now decide the Gaye familys claim for
22 declaratory relief against Plaintiffs and Counter-Defendants. Specifically, for the reasons
23 set forth below, this Court should declare all of Thicke, the Williams Parties, Harris, and
24 the Interscope Parties liable for infringement of the copyright in Got to Give it Up.
25
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B.

Standard of Review for Declaratory Relief.

The Ninth Circuit has generally recognized two criteria for determining whether

27 declaratory relief is appropriate. Declaratory relief may be granted when it will either:
28 (1) aid in clarifying and settling legal relations in issue; or (2) terminate the

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1 proceedings and accord the parties relief from the uncertainty and controversy they
2 faced. Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1112
3 (9th Cir. 1987); see also Bilbrey by Bilbrey v. Brown, 738 F.2d 1462, 1470 (9th Cir.
4 1984) (quoting McGraw-Edison Co. v. Preformed Line Products Co., 362 F.2d 339, 342
5 (9th Cir. 1966), cert. denied, 385 U.S. 919 (1966)). Further, where the record adequately
6 supports the relief sought after a full consideration of the merits, the court may exercise
7 its discretion and grant declaratory relief. United States v. State of Wash., 759 F.2d 1353,
8 1356 (9th Cir. 1985) (citing Natl Automatic Laundry & Cleaning Council v. Schultz,
9 443 F.2d 689, 703 (D.C. Cir. 1971)).
10

Moreover, in a case like the present one, where legal claims tried by the jury and

11 equitable claims tried by the court are based on the same set of facts, the Seventh
12 Amendment requires the trial judge to follow the jurys implicit or explicit factual
13 determinations. See Sanders v. City of Newport, 657 F.3d 772, 783 (9th Cir. 2011); see
14 also Los Angeles Police Protective League v. Gates, 995 F.2d 1469, 1473 (9th Cir.
15 1993) ([I]n a case where legal claims are tried by a jury and equitable claims are tried
16 by a judge, and the claims are based on the same facts, in deciding the equitable claims
17 the Seventh Amendment requires the trial judge to follow the jurys implicit or explicit
18 factual determinations.). Here, the Gaye familys legal claims of copyright
19 infringement and equitable claim of declaratory relief are both based on the same set of
20 facts, which led the jury to find that Blurred Lines infringes on the Gaye familys
21 copyright in Got to Give it Up. Accordingly, as set forth further below, this Court
22 must follow the jurys factual determination and declare all of Thicke, the Williams
23 Parties, Harris, and the Interscope Parties liable for infringement.
24

C.

This Court Should Confirm the Jurys Finding that Thicke and

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the Williams Parties are Liable to the Gayes for Copyright

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Infringement.

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This Court must follow the jurys determination that Blurred Lines infringes the

28 copyright in Got to Give it Up and declare that Thicke and the Williams Parties are

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1 liable for that infringement as found by the jury. The jurys verdict on the issue of
2 Thicke and the Williams Parties infringement is fully supported by the evidence. The
3 jurors heard testimony from both the Gaye familys and Plaintiffs musicological
4 experts, including mistakes and inconsistent prior testimony given by Plaintiffs expert,
5 heard testimony and admissions from Plaintiffs and an executive from UMG
6 Recordings, Inc. about the copying, listened to musical excerpts highlighting the
7 similarities between Got to Give it Up and Blurred Lines, and reached the correct
8 decision that Blurred Lines infringes Got to Give it Up. Further, the evidence
9 showed that Thicke and Williams created the infringing Blurred Lines work.
10 Declaratory relief does not afford the Court the opportunity to reweigh this evidence, but
11 instead requires the Court to follow the jurys factual determination of infringement. See
12 Sanders, 657 F.3d at 783; Gates, 995 F.2d at 1473. Accordingly, the Court should also
13 find in favor of the Gaye family on their request for declaratory relief and issue a
14 declaration that Thicke and the Williams Parties are liable for copyright infringement.
15

D.

This Court Should Confirm its Prior Statements During Trial

16

and Declare Harris and the Interscope Parties Liable for

17

Infringement of Got to Give it Up.

18

This Court already determined the Interscope Parties, and by implication, Harris,

19 should be held liable for copyright infringement as members of the Blurred Lines
20 distribution chain if Thicke and the Williams Parties were found liable by the jury, and
21 that the Gaye family could pursue such relief through a post-trial motion. (See Busch
22 Decl. Ex. A at 164:24-165:2; see also Busch Decl. Ex. B at 38:14-18). Further, the Gaye
23 family previously requested declaratory relief on this issue through their Counterclaims,
24 which have not yet been resolved by this Court. As stated above, the jury
25 overwhelmingly found Thicke and the Williams Parties are liable. Accordingly, this
26 Court should grant the Gaye familys request for declaratory relief, and enter an Order
27 consistent with its prior statements, declaring that Harris and the Interscope Parties are
28 also liable for direct copyright infringement as a matter of law.

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Courts have long held that in patent, trademark, literary property, and copyright

2 infringement cases, any member of the distribution chain can be sued as an alleged joint
3 tortfeasor. Lockheed Martin Corp. v. Network Solutions, Inc., No. CV 96-7438 DDP
4 ANX, 1997 WL 381967, at *3 (C.D. Cal. Mar. 19, 1997) (citing Stabilisierungsfonds
5 Fur Wein v. Kaiser Stuhl Wine Distributors Pty. Ltd., 647 F.2d 200, 207 (D.C. Cir.
6 1981)) (emphasis added). It is well established that a suit for infringement is analogous
7 to other tort actions and infringers are jointly and severally liable. Costello Pub. Co. v.
8 Rotelle, 670 F.2d 1035, 1043 (D.C. Cir. 1981). Therefore, any party that is part of the
9 distribution chain of the infringed work can be held jointly and severally liable for the
10 amount awarded as damages, regardless of any innocent intent. See also Dish Network
11 L.L.C. v. Sonicview USA, Inc., No. 09-CV-1553-L WVG, 2012 WL 4339047, at *2 (S.D.
12 Cal. Sept. 20, 2012) (holding no allocation of damages was necessary between co13 defendants in a copyright infringement case). This is so because only the copyright
14 holder has the right to determine whether to enter the marketplace with a derivative
15 work. Micro Star v. Formgen Inc., 154 F.3d 1107, 1113 (9th Cir. 1998) (noting that the
16 manufacture and distribution of a derivate video game impinged on the [copyright
17 holders] ability to market new versions of its game).
18

There is no dispute that Harris and the Interscope Parties are members of the

19 distribution chain of the single Blurred Lines and the album Blurred Lines. As
20 stipulated by the parties during the trial, Harris is credited with writing Blurred Lines,
21 maintains a copyright ownership right in the song, and is a member of the distribution
22 chain by virtue of receiving royalties from each sale and license of the song.2 (Dkt. No.
23 303 at 1; See Busch Decl. Ex. C at 44:16-18; 45:1-3). The Gaye family and Plaintiffs
24 further stipulated during trial that each of the Interscope Parties is a member of the
25 distribution chain of the single Blurred Lines and the album Blurred Lines through
26
27

The Financial Stipulation was read to the jury on March 3, 2015 and was later admitted

28 into evidence as Trial Exhibit 1766. (See Ex. C at 43:9-47:19).

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1 their manufacture and distribution of those products containing the infringing work.3
2 (See id.). In particular, Star Trak/Interscope released the recording and song Blurred
3 Lines and the album Blurred Lines. (Dkt. No. 320 at 6). Star Trak Entertainment, LLC
4 and Interscope jointly own the sound recording of Blurred Lines. (Dkt. No. 320 at 8).
5 Star Trak/Interscope licenses the sound recording to UMG affiliates in foreign territories
6 to sell. (Dkt. No. 320 at 7). Further, Universal Music Distribution was authorized to
7 and, therefore, manufactured and distributed the single Blurred Lines and album
8 Blurred Lines. (Dkt. No. 320 at 9; see also Busch Decl. Ex. D at 80:20-81:2). These facts
9 are undisputed and show that Harris and the Interscope Parties are members of the
10 distribution chain for the infringing products.
11

The Court recognized during trial that, because of these undisputed facts, each of

12 the Interscope Parties, and by implication, Harris, would also be liable for direct
13 copyright infringement if Thicke and the Williams Parties were found liable.
14 Specifically, the Court stated, if you establish infringement and its undisputed that a
15 Universal entity or entities distributed the recording, then there would be liability.
16 (Busch Decl. Ex. A at 165:6-8). Similarly, the Court stated, If Star Trak distributed,
17 then Star Trak would be directly liable. (See id. at 166:21-22). This exact scenario
18 contemplated by the Court has become reality through the jurys determination that
19 Blurred Lines infringed Got to Give it Up and that Thicke and the Williams Parties
20 are liable. (Dkt. No. 320 at 2:11-28). Accordingly, this Court should confirm its prior
21 statements made during trial by granting the Gaye familys request for declaratory relief
22 first raised in their Counterclaim, and entering an Order declaring that Harris and the
23 Interscope Parties are also liable for infringement of Got to Give it Up as a matter of
24 law.
25

UMG and Interscope, as the sound recording copyright owners, authorized Universal

26 Music Group Distribution (UMGD) to distribute Blurred Lines and therefore

27 committed copyright infringement in this attritional way. See Lewis Galoob Toys, Inc. v.

Nintendo of America, Inc., 964 F.2d 965, 970 (9th Cir. 1992) (infringement by

28 authorization is a form of direct infringement).

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Further, even if, as the jury found, Harris and the Interscope Parties are not liable

2 for past damages caused by the infringement, they are now knowingly participating in
3 the distribution of an infringing work. Harris and the Interscope Parties have continued
4 to exploit Blurred Lines despite the jurys verdict that Blurred Lines infringes Got
5 to Give it Up. Blurred Lines continues to be sold, distributed, reproduced, performed,
6 and displayed, and royalties continue to be paid and received by those in the distribution
7 chain. See Micro Star, 154 F.3d at 1113 (citing Sony Corp. of Am. v. Universal City
8 Studios, Inc., 464 U.S. 417, 451 (1984) (Every commercial use of copyrighted material
9 is presumptively an unfair exploitation of the monopoly privilege that belongs to the
10 owner of the copyright.). In light of the jurys verdict, the Interscope Parties continued
11 acts of exploitation since the verdict constitute willful vicarious and contributory
12 infringement. See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913,
13 930 (2005) (One infringes contributorily by intentionally inducing or encouraging
14 direct infringement . . . and infringes vicariously by profiting from direct infringement
15 while declining to exercise a right to stop or limit it).
16

Regardless of whether they previously knew of the infringement, Harris and the

17 Interscope Parties are now aware of the infringement by virtue of the jurys verdict, and
18 are now also undeniably committing contributory and vicarious copyright infringement
19 with each sale. See id. Such continuing contributory and vicarious infringement further
20 supports this Court issuing a declaration that Harris and the Interscope Parties have
21 infringed (and are infringing) Got to Give it Up. Accordingly, this Court should
22 enforce the jurys finding of infringement and stop Harris and the Interscope Parties
23 prospectively by finding in favor of the Gaye family on their claim for declaratory relief.
24

III.

CONCLUSION

25

Based on the foregoing, the Gaye family respectfully requests this Court enter an

26 Order declaring that Thicke, the Williams Parties, Harris, and the Interscope Parties are
27 directly liable to the Gaye family for copyright infringement, consistent with the jurys
28 verdict finding Thicke and the Williams Parties liable for infringement and this Courts

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1 prior statement that in such an event, Harris and the Interscope Parties would also be liable
2 for infringement as members of the distribution chain.
3
4 Dated: May 1, 2015
5

Respectfully submitted,
KING & BALLOW

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By: /s/ Richard S. Busch

RICHARD S. BUSCH
PAUL H. DUVALL
SARA R. ELLIS
WARGO & FRENCH, LLP
By: /s/ Mark L. Block
MARK L. BLOCK
ARNOLD & PORTER LLP

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BY: /S/ DANIEL B. ASIMOW

MARTIN R. GLICK
DANIEL B. ASIMOW

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Attorneys for Defendants and Counter-Claimants

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

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By: /s/ Paul N. Philips

PAUL N. PHILIPS

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Attorney for Defendant and Counter-Claimant

Marvin Gaye III

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