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Since I do Los Angeles radio show on entertainment law, I’ve been asked by a few news outlets to voice my opinion on the copyright infringement case pitting the Marvin Gaye Estate against Pharrell Williams and Robin Thicke. But who cares about my opinion when we have Richard Epstein and John Yoo? I was thrilled when I heard Troy Senik introduce the topic on the most recent episode of Ricochet’s Law Talk podcast, but who got it right? Richard seems to be close to the age of the jurors in the case. This is the generation of “all this music sounds the same.” (Full disclosure: I’m close to joining that generation myself). John expressed the view that jurors shouldn’t even be allowed to decide these cases.
John got it right. There was no melody lifted, no lyrics, no chord progressions. It was just a successful attempt to write a song in the same genre as the Gaye hits of yesteryear. Why did the jury find infringement? Many believe that what decided this case was the Robin Thicke “ick” factor. Under oath, he came off as a tool. He claimed to be high on drugs and alcohol at key points in the story and threw Pharrell under the bus. The people I spoke with that were at the trial believed the jury thought the songs sounded just enough alike to justify taking millions from this jackass to hand over to the descendants of a saint. In other words: the verdict had a lot more to do with emotional reactions than copyright infringement. It didn’t matter who earned the money; it was all about who the jury thought deserved the money more.