FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PHARRELL WILLIAMS, an individual; 

CLIFFORD HARRIS, JR., an individual; 

ROBIN THICKE, an individual, DBA I 

Like’em Thicke Music,

Plaintiffs-Counter-DefendantsAppellants,

and

MORE WATER FROM NAZARETH 

PUBLISHING, INC.; STAR TRAK 

ENTERTAINMENT; INTERSCOPE 

RECORDS; UMG RECORDINGS, INC.;

UNIVERSAL MUSIC DISTRIBUTION,

Counter-Defendants-Appellants,

v.

FRANKIE CHRISTIAN GAYE, an 

individual; MARVIN GAYE III, an 

individual; NONA MARVISA GAYE, 

an individual,

Defendants-Counter-ClaimantsAppellees.

No. 15-56880

D.C. No.

2:13-cv-06004-

JAK-AGR

OPINION
2 WILLIAMS V. GAYE

PHARRELL WILLIAMS, an individual; 

CLIFFORD HARRIS, JR., an individual; 

ROBIN THICKE, an individual, DBA I 

Like’em Thicke Music,

Plaintiffs-Counter-DefendantsAppellees,

and

MORE WATER FROM NAZARETH 

PUBLISHING, INC.; STAR TRAK 

ENTERTAINMENT; INTERSCOPE

RECORDS; UMG RECORDINGS, INC.;

UNIVERSAL MUSIC DISTRIBUTION,

Counter-Defendants-Appellees,

v.

FRANKIE CHRISTIAN GAYE, an 

individual; MARVIN GAYE III, an 

individual; NONA MARVISA GAYE, 

an individual,

Defendants-Counter-ClaimantsAppellants.

No. 16-55089

D.C. No.

2:13-cv-06004-

JAK-AGR
WILLIAMS V. GAYE 3

PHARRELL WILLIAMS, an individual; 

ROBIN THICKE, an individual, DBA I 

Like’em Thicke Music; CLIFFORD 

HARRIS, JR., an individual,

Plaintiffs-Counter-DefendantsAppellees,

and

MORE WATER FROM NAZARETH 

PUBLISHING, INC.; STAR TRAK 

ENTERTAINMENT; INTERSCOPE 

RECORDS; UMG RECORDINGS, INC.;

UNIVERSAL MUSIC DISTRIBUTION,

Counter-Defendants-Appellees.

v.

FRANKIE CHRISTIAN GAYE, an 

individual; MARVIN GAYE III, an 

individual; NONA MARVISA GAYE, 

an individual,

Defendants-Counter-ClaimantsAppellants.

No. 16-55626

D.C. No.

2:13-cv-06004-

JAK-AGR
4 WILLIAMS V. GAYE

Appeal from the United States District Court

for the Central District of California

John A. Kronstadt, District Judge, Presiding

Argued and Submitted October 6, 2017

Pasadena, California

Filed March 21, 2018

Before: MILAN D. SMITH, JR., MARY H. MURGUIA,

and JACQUELINE H. NGUYEN, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.;

Dissent by Judge Nguyen

SUMMARY*

Copyright

The panel affirmed in part and reversed in part the 

district court’s judgment after a jury trial, ruling that 

plaintiffs’ song “Blurred Lines” infringed defendants’ 

copyright in Marvin Gaye’s song “Got To Give It Up.”

The panel held that “Got To Give It Up” was entitled to 

broad copyright protection because musical compositions 

are not confined to a narrow range of expression. The panel 

accepted, without deciding, the merits of the district court’s 

ruling that the scope of the defendants’ copyright was 

 * This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
WILLIAMS V. GAYE 5

limited, under the Copyright Act of 1909, to the sheet music 

deposited with the Copyright Office, and did not extend to 

sound recordings.

The panel held that the district court’s order denying 

summary judgment was not reviewable after a full trial on 

the merits.

The panel held that the district court did not err in 

denying a new trial. The district court properly instructed 

the jury that there is no scienter requirement for copyright 

infringement and that it must find both access and substantial 

similarity. The district court did not erroneously instruct the 

jury to consider unprotectable elements of “Got To Give It 

Up.” The district court did not abuse its discretion in 

admitting expert testimony. In addition, the verdict was not 

against the clear weight of the evidence because there was 

not an absolute absence of evidence of extrinsic and intrinsic 

similarity between the two songs. 

The panel held that the district court’s award of actual 

damages and infringers’ profits and its running royalty were 

proper.

Reversing in part, the panel held that the district court 

erred in overturning the jury’s general verdict in favor of 

certain parties because the defendants waived any challenge 

to the consistency of the jury’s general verdicts. In addition, 

there was no duty to reconcile the verdicts. The district court 

erred in finding one party secondarily liable for vicarious 

infringement.

The panel held that the district court did not abuse its 

discretion in denying the defendants’ motion for attorneys’ 
6 WILLIAMS V. GAYE

fees under § 505 of the Copyright Act or in apportioning 

costs among the parties.

Dissenting, Judge Nguyen wrote that “Blurred Lines” 

and “Got To Give It Up” were not objectively similar as a 

matter of law under the extrinsic test because they differed 

in melody, harmony, and rhythm, and the majority’s refusal 

to compare the two works improperly allowed the 

defendants to copyright a musical style.

COUNSEL

Kathleen M. Sullivan (argued) and Ellyde R. Thompson, 

Quinn Emanuel Urquhart & Sullivan LLP, New York, New 

York; Daniel C. Posner, Quinn Emanuel Urquhart & 

Sullivan LLP, Los Angeles, California; Howard E. King, 

Stephen D. Rothschild, and Seth Miller, King Holmes 

Paterno & Soriano LLP, Los Angeles, California; for 

Plaintiffs-Appellants/Cross-Appellees Pharrell Williams, 

Clifford Harris Jr., Robin Thicke, and More Water from 

Nazareth Publishing Inc.

Mark E. Haddad (argued), Amanda R. Farfel, Michelle B. 

Goodman, Rollin A. Ransom, and Peter I. Ostroff, Sidley 

Austin LLP, Los Angeles, California, for DefendantsAppellants/Cross-Appellees Star Trak Entertainment, 

Interscope Records, UMG Recordings Inc., Universal Music 

Distribution.

Lisa Blatt (argued), Arnold & Porter LLP, Washington, 

D.C.; Richard S. Busch (argued), Sara R. Ellis, and Steven 

C. Douse, King & Ballow, Nashville, Tennessee; Daniel B. 

Asimov and Martin R. Glick, Arnold & Porter LLP, San 

Francisco, California; Paul H. Duvall, King & Ballow, San 
WILLIAMS V. GAYE 7

Diego, California; Mark L. Block, Wargo & French LLP, 

Los Angeles, California; Paul N. Philips, Law Offices of 

Paul N. Philips APLC, West Hollywood, California; for 

Defendants-Appellees/Cross-Appellants Frankie Christian 

Gaye, Marvin Gaye III, and Nona Marvisa Gaye.

Kenneth D. Freundlich, Freundlich Law, Encino, California, 

for Amici Curiae Musicologists.

Edwin F. McPherson, McPherson Rane LLP, Los Angeles, 

California, for Amici Curiae 212 Songwriters, Composers, 

Musicians, and Producers.

Charles Duan, Public Knowledge, Washington, D.C., for 

Amicus Curiae Public Knowledge.

Sean M. O’Connor, Lateef Mtima, and Steven D. Jamar, 

Institute for Intellectual Property and Social Justice Inc., 

Rockville, Maryland, for Amicus Curiae Institute for 

Intellectual Property and Social Justice; Musicians and 

Composers; and Law, Music, and Business Professors.

Bernard A. Burk, Director, Lawyering Skills Program, 

William H. Bowen School of Law, University of Arkansas 

at Little Rock, Little Rock, Arkansas; Howard Barry 

Abrams, University of Detroit Mercy School of Law, 

Detroit, Michigan; for Amici Curiae Musicologists.
8 WILLIAMS V. GAYE

OPINION

M. SMITH, Circuit Judge:

After a seven-day trial and two days of deliberation, a 

jury found that Pharrell Williams, Robin Thicke, and 

Clifford Harris, Jr.’s song “Blurred Lines,” the world’s bestselling single in 2013, infringed Frankie Christian Gaye, 

Nona Marvisa Gaye, and Marvin Gaye III’s copyright in 

Marvin Gaye’s 1977 hit song “Got To Give It Up.” Three 

consolidated appeals followed.

Appellants and Cross-Appellees Williams, Thicke, 

Harris, and More Water from Nazareth Publishing, Inc. 

(collectively, Thicke Parties) appeal from the district court’s 

judgment. They urge us to reverse the district court’s denial 

of their motion for summary judgment and direct the district 

court to enter judgment in their favor. In the alternative, they 

ask us to vacate the judgment and remand the case for a new 

trial, on grounds of instructional error, improper admission 

of expert testimony, and lack of evidence supporting the 

verdict. If a new trial is not ordered, they request that we 

reverse or vacate the jury’s awards of actual damages and 

infringer’s profits, and the district court’s imposition of a 

running royalty. Finally, they seek reversal of the judgment 

against Harris, challenging the district court’s decision to 

overturn the jury’s general verdict finding in Harris’s favor.

Appellants and Cross-Appellees Interscope Records, 

UMG Recordings, Inc., Universal Music Distribution, and 

Star Trak, LLC (collectively, Interscope Parties) appeal from 

the district court’s judgment. They urge us to reverse the 

judgment against them, challenging the district court’s 

decision to overturn the jury’s general verdict finding in their 

favor.
WILLIAMS V. GAYE 9

Appellees and Cross-Appellants Frankie Christian Gaye, 

Nona Marvisa Gaye, and Marvin Gaye III (collectively, 

Gayes) appeal from the district court’s order on attorney’s 

fees and costs. They request that we vacate and remand for 

reconsideration the district court’s denial of attorney’s fees, 

and award them their costs in full. The Gayes also 

protectively cross-appeal the district court’s ruling limiting 

the scope of the Gayes’ compositional copyright to the four 

corners of the sheet music deposited with the United States 

Copyright Office. In the event a new trial is ordered, the 

Gayes urge us to hold that Marvin Gaye’s studio recording 

of “Got To Give It Up,” rather than the deposit copy, 

establishes the scope of the Gayes’ copyright under the 

Copyright Act of 1909.

We have jurisdiction over this appeal pursuant to 

28 U.S.C. § 1291. Our law requires that we review this case, 

which proceeded to a full trial on the merits in the district 

court, under deferential standards of review. We 

accordingly decide this case on narrow grounds, and affirm 

in part and reverse in part.

FACTUAL AND PROCEDURAL BACKGROUND

A. “Got To Give It Up”

In 1976, Marvin Gaye recorded the song “Got To Give 

It Up” in his studio. “Got To Give It Up” reached number 

one on Billboard’s Hot 100 chart in 1977, and remains 

popular today.

In 1977, Jobete Music Company, Inc. registered “Got To 

Give It Up” with the United States Copyright Office and 

deposited six pages of handwritten sheet music attributing 

the song’s words and music to Marvin Gaye. Marvin Gaye 

did not write or fluently read sheet music, and did not 
10 WILLIAMS V. GAYE

prepare the deposit copy. Instead, an unidentified transcriber 

notated the sheet music after Marvin Gaye recorded “Got To 

Give It Up.”

The Gayes inherited the copyrights in Marvin Gaye’s 

musical compositions.

B. “Blurred Lines”

In June 2012, Pharrell Williams and Robin Thicke wrote 

and recorded “Blurred Lines.” Clifford Harris, Jr., known 

popularly as T.I., separately wrote and recorded a rap verse 

for “Blurred Lines” that was added to the track seven months 

later. “Blurred Lines” was the best-selling single in the 

world in 2013.

Thicke, Williams, and Harris co-own the musical 

composition copyright in “Blurred Lines.” Star Trak and 

Interscope Records co-own the sound recording of “Blurred 

Lines.” Universal Music Distribution manufactured and 

distributed “Blurred Lines.”

C. The Action

The Gayes made an infringement demand on Williams 

and Thicke after hearing “Blurred Lines.” Negotiations 

failed, prompting Williams, Thicke, and Harris to file suit 

for a declaratory judgment of non-infringement on August 

15, 2013.

The Gayes counterclaimed against the Thicke Parties, 

alleging that “Blurred Lines” infringed their copyright in 
WILLIAMS V. GAYE 11

“Got To Give It Up,”1 and added the Interscope Parties as 

third-party defendants.

D. The District Court’s Denial of Summary 

Judgment

The district court denied Williams and Thicke’s motion 

for summary judgment on October 30, 2014.

1. The District Court’s Interpretation of the 

Copyright Act of 1909 

The district court ruled that the Gayes’ compositional 

copyright, which is governed by the Copyright Act of 1909, 

did not extend to the commercial sound recording of “Got 

To Give It Up,” and protected only the sheet music deposited 

with the Copyright Office. The district court accordingly 

limited its review of the evidence to the deposit copy, and 

concluded there were genuine issues of material fact.

2. The Evidence

The Thicke Parties relied upon the opinion of 

musicologist Sandy Wilbur. The Gayes relied upon the 

opinions of Dr. Ingrid Monson, the Quincy Jones Professor 

of African American Music at Harvard University, and 

musicologist Judith Finell. The experts disagreed sharply in 

their opinions, which they articulated in lengthy reports.

 1 The Gayes asserted a second counterclaim alleging that Thicke’s 

song “Love After War” infringed their copyright in Marvin Gaye’s 

composition “After the Dance.” The jury found against the Gayes on the 

second counterclaim, and judgment was entered against them. On 

appeal, the second counterclaim is relevant only to the issue of costs.
12 WILLIAMS V. GAYE

Finell opined that there is a “constellation” of eight 

similarities between “Got To Give It Up” and “Blurred 

Lines,” consisting of the signature phrase, hooks,2 hooks 

with backup vocals, “Theme X,”3 backup hooks, bass 

melodies, keyboard parts, and unusual percussion choices.

Wilbur opined that there are no substantial similarities 

between the melodies, rhythms, harmonies, structures, and 

lyrics of “Blurred Lines” and “Got To Give It Up,” and 

disputed each area of similarity Finell identified. The district 

court compared Finell’s testimony with Wilbur’s and, 

pursuant to the extrinsic test under copyright law, 

meticulously filtered out elements Wilbur opined were not 

in the deposit copy, such as the backup vocals, “Theme X,” 

descending bass line, keyboard rhythms, and percussion 

parts.

The district court also filtered out several unprotectable 

similarities Dr. Monson identified, including the use of a 

cowbell, hand percussion, drum set parts, background 

vocals, and keyboard parts. After filtering out those 

elements, the district court considered Dr. Monson’s 

analysis of harmonic and melodic similarities between the 

songs, and noted differences between Wilbur’s and Dr. 

Monson’s opinions.

After performing its analytical dissection, as part of the 

extrinsic test, the district court summarized the remaining 

areas of dispute in the case. The district court identified 

disputes regarding the similarity of the songs’ signature 

 2 According to Finell, the term “hook” refers to the most important 

and memorable melodic material of a piece of popular music.

3 Finell named a repeated four-note backup vocal in “Got To Give 

It Up” as “Theme X.”
WILLIAMS V. GAYE 13

phrases, hooks, bass lines, keyboard chords, harmonic 

structures, and vocal melodies. Concluding that genuine 

issues of material fact existed, the district court denied 

Williams and Thicke’s motion for summary judgment.

E. Trial

The case proceeded to a seven-day trial. The district 

court ruled before trial that the Gayes could present sound 

recordings of “Got To Give It Up” edited to capture only 

elements reflected in the deposit copy. Consequently, the 

commercial sound recording of “Got To Give It Up” was not 

played at trial.

Williams and Thicke testified, each acknowledging 

inspiration from Marvin Gaye and access to “Got To Give It 

Up.”

Finell testified that “Blurred Lines” and “Got To Give It 

Up” share many similarities, including the bass lines, 

keyboard parts, signature phrases, hooks, “Theme X,” bass 

melodies, word painting, and the placement of the rap and 

“parlando” sections in the two songs. She opined that nearly 

every bar of “Blurred Lines” contains an element similar to 

“Got To Give It Up.” Although the district court had filtered 

out “Theme X,” the descending bass line, and the keyboard 

rhythms as unprotectable at summary judgment, Finell 

testified that those elements were in the deposit copy.

Dr. Monson played three audio-engineered “mash-ups” 

she created to show the melodic and harmonic compatibility 

between “Blurred Lines” and “Got To Give It Up.” She 

testified that the two songs shared structural similarities on a 

sectional and phrasing level.
14 WILLIAMS V. GAYE

Wilbur opined that the two songs are not substantially 

similar and disputed Finell and Dr. Monson’s opinions. 

Wilbur prepared and played a sound recording containing 

her rendition of the deposit copy of “Got To Give It Up.”

Neither the Thicke Parties nor the Gayes made a motion 

for judgment as a matter of law pursuant to Federal Rule of 

Civil Procedure 50(a) before the case was submitted to the 

jury.

On March 10, 2015, after two days of deliberation, the 

jury returned mixed general verdicts.4 The jury found that 

Williams, More Water from Nazareth Publishing,5 and 

Thicke infringed the Gayes’ copyright in “Got To Give It 

Up.” In contrast, the jury found that Harris and the 

Interscope Parties were not liable for infringement. The jury 

awarded the Gayes $4 million in actual damages, 

$1,610,455.31 in infringer’s profits from Williams and More 

Water from Nazareth Publishing, and $1,768,191.88 in 

infringer’s profits from Thicke.

F. The District Court’s Order on Post-Trial Motions

The district court ruled on the parties’ various post-trial 

motions in an omnibus order.

The Thicke Parties filed a motion for judgment as a 

matter of law, a new trial, or remittitur. The district court 

 4 Although the verdict forms are captioned “Special Verdict,” they 

are functionally general verdict forms. See Zhang v. Am. Gem Seafoods, 

Inc., 339 F.3d 1020, 1031 (9th Cir. 2003) (“If the jury announces only 

its ultimate conclusions, it returns an ordinary general verdict[.]”).

5 More Water From Nazareth Publishing, Inc. collects royalties on

Williams’ behalf.
WILLIAMS V. GAYE 15

denied the Thicke Parties’ motion for judgment as a matter 

of law and motion for a new trial, but remitted the award of 

actual damages and the award of Williams’ profits.

The Gayes filed three motions, seeking (1) a declaration 

that Harris and the Interscope Parties were liable for 

infringement; (2) injunctive relief or, in the alternative, 

ongoing royalties; and (3) prejudgment interest. The district 

court construed the Gayes’ motion for declaratory relief as a 

post-trial motion for judgment as a matter of law, and 

granted the motion, overturning the jury’s general verdicts 

in favor of Harris and the Interscope Parties. The district 

court denied the Gayes’ request for injunctive relief, but 

awarded them a running royalty of 50% of future songwriter 

and publishing revenues from “Blurred Lines.” The district 

court granted in part the Gayes’ motion for prejudgment 

interest.

G. The Judgment and Order on Attorney’s Fees and 

Costs

The district court entered judgment on December 2, 

2015. The court awarded the Gayes $3,188,527.50 in actual 

damages, profits of $1,768,191.88 against Thicke and 

$357,630.96 against Williams and More Water from 

Nazareth Publishing, and a running royalty of 50% of future 

songwriter and publishing revenues received by Williams, 

Thicke, and Harris.

On April 12, 2016, the district court denied the Gayes’ 

motion for attorney’s fees and apportioned costs between the 

parties. The parties timely appealed.
16 WILLIAMS V. GAYE

ANALYSIS

I. Governing Law

We begin by discussing the law applicable to this case.

A. Elements of a Copyright Infringement Claim

To prevail on a copyright infringement claim, a plaintiff 

must show that (1) he or she owns the copyright in the 

infringed work, and (2) the defendant copied protected 

elements of the copyrighted work. Swirsky v. Carey, 

376 F.3d 841, 844 (9th Cir. 2004). A copyright plaintiff may 

prove copying with circumstantial, rather than direct, 

evidence. Three Boys Music Corp. v. Bolton, 212 F.3d 477, 

481 (9th Cir. 2000). “Absent direct evidence of copying, 

proof of infringement involves fact-based showings that the 

defendant had ‘access’ to the plaintiff’s work and that the 

two works are ‘substantially similar.’” Id. (quoting Smith v. 

Jackson, 84 F.3d 1213, 1218 (9th Cir. 1996)).

Access and substantial similarity are “inextricably 

linked.” Id. at 485. We adhere to the “inverse ratio rule,” 

which operates like a sliding scale: The greater the showing 

of access, the lesser the showing of substantial similarity is 

required.6 See Swirsky, 376 F.3d at 844; Three Boys Music, 

212 F.3d at 485. Williams and Thicke readily admitted at 

trial that they had a high degree of access to “Got To Give It 

Up.” The Gayes’ burden of proof of substantial similarity is 

lowered accordingly. See Swirsky, 376 F.3d at 844–45; see 

 6 To be clear, we do not “redefin[e] the test of substantial similarity 

here,” or negate the requirement that there be substantial similarity. See 

Three Boys Music, 212 F.3d at 486. Although the dissent criticizes the 

inverse ratio rule, the rule is binding precedent under our circuit law, and 

we are bound to apply it.
WILLIAMS V. GAYE 17

also Metcalf v. Bochco, 294 F.3d 1069, 1075 (9th Cir. 2002) 

(“The [plaintiffs’] case is strengthened considerably by [the 

defendant’s] concession of access to their works.”).

We use a two-part test for substantial similarity: an 

extrinsic test and an intrinsic test. Swirsky, 376 F.3d at 845. 

For a jury to find substantial similarity, there must be 

evidence on both the extrinsic and intrinsic tests. Id. (citing 

Rice v. Fox Broad. Co., 330 F.3d 1170, 1174 (9th Cir. 

2003)). A district court applies only the extrinsic test on a 

motion for summary judgment, as the intrinsic test is 

reserved exclusively for the trier of fact. Benay v. Warner 

Bros. Entm’t, Inc., 607 F.3d 620, 624 (9th Cir. 2010).

The extrinsic test is objective. Swirsky, 376 F.3d at 845. 

It “considers whether two works share a similarity of ideas 

and expression as measured by external, objective criteria.” 

Id. Application of “[t]he extrinsic test requires ‘analytical 

dissection of a work and expert testimony.’” Id. (quoting 

Three Boys Music, 212 F.3d at 485). An analytical 

dissection, in turn, “requires breaking the works ‘down into 

their constituent elements, and comparing those elements for 

proof of copying as measured by “substantial similarity.”’” 

Id. (quoting Rice v. Fox Broad. Co., 148 F. Supp. 2d 1029, 

1051 (C.D. Cal. 2001)).

The intrinsic test, on the other hand, is subjective. Three 

Boys Music, 212 F.3d at 485. It “asks ‘whether the ordinary, 

reasonable person would find the total concept and feel of 

the works to be substantially similar.’” Id. (quoting Pasillas 

v. McDonald’s Corp., 927 F.2d 440, 442 (9th Cir. 1991)).

“Because the requirement is one of substantial similarity 

to protected elements of the copyrighted work, it is essential 

to distinguish between the protected and unprotected 
18 WILLIAMS V. GAYE

material in a plaintiff’s work.”7 Swirsky, 376 F.3d at 845. 

Still, “substantial similarity can be found in a combination 

of elements, even if those elements are individually 

unprotected.” Id. at 848; see also Metcalf, 294 F.3d at 1074 

(“Each note in a scale, for example, is not protectable, but a 

pattern of notes in a tune may earn copyright protection.”); 

Three Boys Music, 212 F.3d at 485–86 (upholding jury’s 

finding of substantial similarity based on “a combination of 

unprotectible elements”). This principle finds particular 

relevance in application of the intrinsic test, as a trier of fact 

may “find that the over-all impact and effect indicate 

substantial appropriation,” even if “any one similarity taken 

by itself seems trivial.” Sid & Marty Krofft Television 

Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1169 (9th 

Cir. 1977) (quoting Malkin v. Dubinsky, 146 F. Supp. 111, 

114 (S.D.N.Y. 1956)), superseded in part on other grounds,

17 U.S.C. § 504(b); see also Three Boys Music, 212 F.3d at 

485.

B. The Standard of Similarity for Musical 

Compositions

We have distinguished between “broad” and “thin” 

copyright protection based on the “range of expression” 

 7 “Copyright protection subsists . . . in original works of 

authorship,” including “musical works” and “any accompanying words,” 

that are “fixed in any tangible medium of expression.” 17 U.S.C. 

§ 102(a). Generally speaking, copyright law does not protect ideas, but 

rather, protects the expression of ideas. See id. § 102(b); Rice, 330 F.3d 

at 1174. For example, elements of an original work of authorship may 

be unprotectable by reason of the scenes a faire doctrine. See Swirsky, 

376 F.3d at 849–50. According to that doctrine, “when certain 

commonplace expressions are indispensable and naturally associated 

with the treatment of a given idea, those expressions are treated like ideas 

and therefore not protected by copyright.” Id. at 850.
WILLIAMS V. GAYE 19

involved. Mattel, Inc. v. MGA Entm’t, Inc., 616 F.3d 904, 

913–14 (9th Cir. 2010). “If there’s a wide range of 

expression . . . , then copyright protection is ‘broad’ and a 

work will infringe if it’s ‘substantially similar’ to the 

copyrighted work.” Id. (citation omitted). On the other 

hand, “[i]f there’s only a narrow range of expression . . . ,

then copyright protection is ‘thin’ and a work must be 

‘virtually identical’ to infringe.” Id. at 914 (citation 

omitted). To illustrate, there are a myriad of ways to make 

an “aliens-attack movie,” but “there are only so many ways 

to paint a red bouncy ball on blank canvas.” Id. at 913–14. 

Whereas the former deserves broad copyright protection, the 

latter merits only thin copyright protection. See id.

We reject the Thicke Parties’ argument that the Gayes’ 

copyright enjoys only thin protection. Musical compositions 

are not confined to a narrow range of expression.8 See 

Swirsky, 376 F.3d at 849 (noting that “[m]usic . . . is not 

capable of ready classification into only five or six 

constituent elements,” but “is comprised of a large array of 

elements”). They are unlike a page-shaped computer 

desktop icon, see Apple Computer, Inc. v. Microsoft Corp., 

35 F.3d 1435, 1444 (9th Cir. 1994), or a “glass-in-glass 

jellyfish sculpture,” Satava v. Lowry, 323 F.3d 805, 810 (9th 

Cir. 2003). Rather, as we have observed previously, 

“[m]usic . . . is not capable of ready classification into only 

five or six constituent elements,” but is instead “comprised 

of a large array of elements, some combination of which is 

 8 Even the de minimis exception, which renders insignificant 

copying inactionable, does not require a standard of similarity as 

exacting as virtual identity. See VMG Salsoul, LLC v. Ciccone, 824 F.3d 

871, 878 (9th Cir. 2016) (“A ‘use is de minimis only if the average 

audience would not recognize the appropriation.’” (quoting Newton v. 

Diamond, 388 F.3d 1189, 1193 (9th Cir. 2004))).
20 WILLIAMS V. GAYE

protectable by copyright.” Swirsky, 376 F.3d at 849. As 

“[t]here is no one magical combination of . . . factors that 

will automatically substantiate a musical infringement suit,” 

and as “each allegation of infringement will be unique,” the 

extrinsic test is met, “[s]o long as the plaintiff can 

demonstrate, through expert testimony . . . , that the 

similarity was ‘substantial’ and to ‘protected elements’ of 

the copyrighted work.” Id. We have applied the substantial 

similarity standard to musical infringement suits before, see 

id.; Three Boys Music, 212 F.3d at 485, and see no reason to 

deviate from that standard now. Therefore, the Gayes’ 

copyright is not limited to only thin copyright protection, and 

the Gayes need not prove virtual identity to substantiate their 

infringement action.

C. The Copyright Act of 1909

Marvin Gaye composed “Got To Give It Up” before 

January 1, 1978, the effective date of the Copyright Act of 

1976. Accordingly, the Copyright Act of 1909 governs the 

Gayes’ compositional copyright. See Twentieth Century 

Fox Film Corp. v. Entm’t Distrib., 429 F.3d 869, 876 (9th 

Cir. 2005); Dolman v. Agee, 157 F.3d 708, 712 n.1 (9th Cir. 

1998).

While the Copyright Act of 1976 protects “works of 

authorship” fixed in “sound recordings,” 17 U.S.C. § 102, 

the 1909 Act did not protect sound recordings. It is well 

settled that “[s]ound recordings and musical compositions 

are separate works with their own distinct copyrights.”9 See 

 9 17 U.S.C. § 102(a)(2) protects “musical works,” while § 102(a)(7) 

protects “sound recordings.” “‘Sound recordings’ are works that result 

from the fixation of a series of musical, spoken, or other sounds . . . ,

regardless of the nature of the material objects, such as disks, tapes, or 

other phonorecords, in which they are embodied.” 17 U.S.C. § 101.
WILLIAMS V. GAYE 21

VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 877 (9th Cir. 

2016) (quoting Erickson v. Blake, 839 F. Supp. 2d 1132, 

1135 n.3 (D. Or. 2012)). It remains unsettled, however, 

whether copyright protection for musical compositions 

under the 1909 Act extends only to the four corners of the 

sheet music deposited with the United States Copyright 

Office, or whether the commercial sound recordings of the 

compositions are admissible to shed light on the scope of the 

underlying copyright. Here, the district court ruled that the 

1909 Act protected only the deposit copy of “Got To Give It 

Up,” and excluded the sound recording from consideration.

The Gayes cross-appeal the district court’s interpretation 

of the 1909 Act only in the event the case is remanded for a 

new trial. The parties have staked out mutually exclusive 

positions. The Gayes assert that Marvin Gaye’s studio 

recording may establish the scope of a compositional 

copyright, despite the 1909 Act’s lack of protection for 

sound recordings. The Thicke Parties, on the other hand, 

elevate the deposit copy as the quintessential measure of the 

scope of copyright protection.10 Nevertheless, because we 

 10 To our knowledge, the Thicke Parties’ position had not found 

support in case law until the district court’s ruling. See Three Boys 

Music, 212 F.3d at 486 (observing, in the context of subject matter 

jurisdiction, that “[a]lthough the 1909 Copyright Act requires the owner 

to deposit a ‘complete copy’ of the work with the copyright office, our 

definition of a ‘complete copy’ is broad and deferential”); see also

17 U.S.C. § 704 (providing that the Register of Copyrights and the 

Librarian of Congress may destroy or otherwise dispose of original 

deposit copies if certain facsimile requirements are met); Marya v. 

Warner/Chappell Music, Inc., 131 F. Supp. 3d 975, 982 (C.D. Cal. 2015)

(observing that “[t]he Copyright Office no longer has the deposit copy” 

of the work at issue, which was registered in 1935); 2 Nimmer on 

Copyright § 7.17[A] (2017) (noting that “[t]he function of deposit is to 

provide the Library of Congress via the Copyright Office with copies 

and phonorecords of all works published within the United States,” and 
22 WILLIAMS V. GAYE

do not remand the case for a new trial, we need not, and 

decline to, resolve this issue in this opinion. For purposes of 

this appeal, we accept, without deciding, the merits of the 

district court’s ruling that the scope of the Gayes’ copyright 

in “Got To Give It Up” is limited to the deposit copy.

II. The District Court’s Order Denying Summary 

Judgment is Not Reviewable After a Full Trial on the 

Merits.

The Thicke Parties seek review of the district court’s 

order denying their motion for summary judgment, 

contending that the district court erred in its application of 

the extrinsic test for substantial similarity.

The order is not reviewable. The Supreme Court has 

squarely answered the question: “May a party . . . appeal an 

order denying summary judgment after a full trial on the 

merits? Our answer is no.” Ortiz v. Jordan, 562 U.S. 180, 

183–84 (2011). An order denying summary judgment is 

“simply a step along the route to final judgment.” Id. at 184. 

“Once the case proceeds to trial, the full record developed in 

court supersedes the record existing at the time of the 

summary-judgment motion.” Id.

The Thicke Parties argue that we may nonetheless 

review the district court’s denial of summary judgment for 

legal error. We “generally do ‘not review a denial of a 

summary judgment motion after a full trial on the merits.’” 

Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1243 

(9th Cir. 2014) (quoting Banuelos v. Constr. Laborers’ Tr. 

 

that the argument “that deposit has a copyright as well as an archival 

function” is “attenuated by the fact that the Library of Congress need not 

add all deposited works to its collection” or “preserve those works which 

it does add to its collection”).
WILLIAMS V. GAYE 23

Funds for S. Cal., 382 F.3d 897, 902 (9th Cir. 2004)). We 

carved out an exception to this general rule in the past, 

concluding that we may review “denials of summary 

judgment motions where the district court made an error of 

law that, if not made, would have required the district court 

to grant the motion.’” Id. (quoting Banuelos, 743 F.3d at 

902).

Ortiz calls into question the continuing viability of our 

exception.11 In Ortiz, the Supreme Court declined to address 

the argument that “‘purely legal’ issues capable of resolution 

‘with reference only to undisputed facts’” are preserved for 

appellate review even after trial. 562 U.S. at 189. Read 

broadly, Ortiz does not foreclose review of denials of 

summary judgment after trial, so long as the issues presented 

are purely legal. But read narrowly, the Court’s dicta does 

not endorse such an exception either.

We need not decide today whether our exception 

survives Ortiz unaltered. The Thicke Parties’ arguments 

“hardly present ‘purely legal’ issues capable of resolution 

‘with reference only to undisputed facts.’” Id. The district 

court’s application of the extrinsic test of similarity was a 

factbound inquiry far afield from decisions resolving 

“disputes about the substance and clarity of pre-existing 

law.” Id. The district court’s ruling bears little resemblance 

to legal issues we have reviewed pursuant to our exception. 

See, e.g., Escriba, 743 F.3d at 1243–45 (examining whether 

“the district court erred as a matter of law by entertaining 

[defendant’s] ‘legally impossible’ theory of the case that 

[plaintiff] affirmatively declined to take FMLA leave”); 

Banuelos, 382 F.3d at 903 (examining whether “the district 

 11 While Escriba, a 2014 decision, post-dates Ortiz, Escriba does 

not reference the Supreme Court’s decision. See 743 F.3d at 1243.
24 WILLIAMS V. GAYE

court erred as a matter of law when it concluded it could hear 

evidence outside the administrative record” in an ERISA 

case); Pavon v. Swift Transp. Co., 192 F.3d 902, 906 (9th 

Cir. 1999) (reviewing the district court’s ruling on claim 

preclusion). We accordingly conclude that Ortiz forecloses

our review of the district court’s denial of summary 

judgment.

III. The District Court Did Not Abuse its Discretion 

in Denying a New Trial. 

We review the district court’s denial of a motion for a 

new trial for abuse of discretion. Lam v. City of San Jose, 

869 F.3d 1077, 1084 (9th Cir. 2017) (citing Molski v. M.J. 

Cable, Inc., 481 F.3d 724, 728 (9th Cir. 2007)). We may 

reverse the denial of a new trial only if the district court 

“reaches a result that is illogical, implausible, or without 

support in the inferences that may be drawn from the 

record.” Id. (quoting Kode v. Carlson, 596 F.3d 608, 612 

(9th Cir. 2010)). “The abuse of discretion standard requires 

us to uphold a district court’s determination that falls within 

a broad range of permissible conclusions, provided the 

district court did not apply the law erroneously.” Id. 

(quoting Kode, 596 F.3d at 612).

The Thicke Parties argue that a new trial is warranted on 

three grounds: (1) Jury Instructions 42 and 43 were 

erroneous; (2) the district court abused its discretion in 

admitting portions of Finell and Dr. Monson’s testimony; 

and (3) the verdict is against the clear weight of the evidence. 

We disagree, and discuss each ground in turn.

A. Instructions 42 and 43 Were Not Erroneous.

We review de novo whether jury instructions state the 

law accurately, but review a district court’s formulation of 
WILLIAMS V. GAYE 25

jury instructions for abuse of discretion. Id. at 1085 (citing 

Hunter v. County of Sacramento, 652 F.3d 1225, 1232 (9th 

Cir. 2011)). “In evaluating jury instructions, prejudicial 

error results when, looking to the instructions as a whole, the 

substance of the applicable law was [not] fairly and correctly 

covered.” Dang v. Cross, 422 F.3d 800, 805 (9th Cir. 2005) 

(alteration in original) (quoting Swinton v. Potomac Corp.,

270 F.3d 794, 802 (9th Cir. 2001)).

1. Jury Instruction 42

The Thicke Parties argue that Instruction 42 allowed the 

jury to place undue weight on Williams and Thicke’s

statements claiming inspiration from “Got To Give It Up” 

and Marvin Gaye. The district court instructed the jurors:

In order to find that the Thicke parties copied either or 

both of the Gaye Parties’ songs, it is not necessary that you 

find that the Thicke Parties consciously or deliberately 

copied either or both of these songs. It is sufficient if you 

find that the Thicke Parties subconsciously copied either or 

both of the Gaye Parties’ songs.

Because direct evidence is rare, copying is usually 

circumstantially proved by a combination of access and 

substantial similarity. See Swirsky, 376 F.3d at 844. As the 

Thicke Parties acknowledge, access may be “based on a 

theory of widespread dissemination and subconscious 

copying.” Three Boys Music, 212 F.3d at 483. In short, there 

is no scienter requirement. See id. at 482–85. Instruction 42 

stated as much.

The Thicke Parties argue that Instruction 42 was 

nonetheless inappropriate, because the issue of access was 

not at issue. Not so. First, the fact that the Thicke Parties 

conceded access to “Got To Give It Up” does not diminish 
26 WILLIAMS V. GAYE

the importance of access to the case. To the contrary, access 

remains relevant. Our inverse ratio rule provides that the 

stronger the showing of access, the lesser the showing of

substantial similarity is required. See id. at 485.

Second, and dispositive here, the instructions as a whole 

make plain that a circumstantial case of copying requires not 

just access, but also substantial similarity. Instructions 28 

and 41 provide that copying may be proven by 

demonstrating access plus substantial similarity.12 

Instruction 43 further underscores that the Gayes “must 

show that there is both substantial ‘extrinsic similarity’ and 

substantial ‘intrinsic similarity’ as to that pair of works.” 

Looking to the jury instructions as a whole, see Dang, 

422 F.3d at 805, it is clear that the district court properly 

instructed the jury to find both access and substantial 

similarity.

 12 Instruction 28 provides: “The Gaye Parties may show the Thicke 

Parties copied from the work by showing by a preponderance of the 

evidence that the Thicke Parties had access to the Gaye Parties’

copyrighted work and that there are substantial similarities between the 

Thicke Parties’ work and original elements of the Gaye Parties’ work.” 

That the instruction uses the permissive “may” presents no problem. It

simply reflects the fact that the Gayes may, but are not required to, prove 

copying by way of a circumstantial theory, rather than a direct one.

Instruction 41 provides: “If you conclude that the Thicke Parties had 

access to either or both of the Gaye Parties’ works before creating either 

or both of their works, you may consider that access in connection with 

determining whether there is substantial similarity between either or both 

pairs of works.” Instruction 41’s use of “may” is not problematic either. 

In line with our inverse ratio rule, the instruction permits the jury to 

consider access “in connection with” substantial similarity.
WILLIAMS V. GAYE 27

In light of the foregoing, we conclude that the district 

court did not err in giving Jury Instruction 42.

2. Jury Instruction 43

The Thicke Parties argue that Instruction 43 erroneously 

instructed the jury to consider unprotectable elements. 

Specifically, they contend that the district court instructed 

the jury that it “must consider” elements that they contend 

are not present in the deposit copy: “Theme X,” the 

descending bass line, and keyboard parts. Instruction 43 

states, in pertinent part:

Extrinsic similarity is shown when two works 

have a similarity of ideas and expression as 

measured by external, objective criteria. To 

make this determination, you must consider 

the elements of each of the works and decide 

if they are substantially similar. This is not 

the same as “identical.” There has been 

testimony and evidence presented by both 

sides on this issue, including by expert 

witnesses, as to such matters as: (a) for “Got 

to Give It Up” and “Blurred Lines,” the socalled “Signature Phrase,” hook, “Theme X,” 

bass melodies, keyboard parts, word 

painting, lyrics, [and] rap v. parlando . . . . 

The Gaye Parties do not have to show that 

each of these individual elements is 

substantially similar, but rather that there is 

enough similarity between a work of the 

Gaye Parties and an allegedly infringing 

work of the Thicke Parties to comprise a 

substantial amount.
28 WILLIAMS V. GAYE

First, the Thicke Parties take the word “must” out of 

context. Instruction 43’s use of the word “must” serves to 

underline the extrinsic test’s requirement that the jury 

compare the objective elements of the works for substantial 

similarity.

Second, Finell testified that “Theme X,” the descending 

bass line, and the keyboard parts are reflected in the deposit 

copy, while Wilbur testified to the contrary. The experts’ 

quarrel over what was in the deposit copy was a factual 

dispute for the jury to decide. Even if Instruction 43’s 

inclusion of contested elements could have led the jury to 

believe that the elements were in the deposit copy, and to 

consider them as protectable elements for purposes of the 

substantial similarity analysis, we cannot view Instruction 

43 in isolation. In light of the jury instructions as a whole, 

we do not conclude that the district court’s listing of 

elements in Instruction 43 prevented the jury from making a 

factual determination of what was in the deposit copy.

The instructions on whole make clear that the jury could 

consider only elements in the deposit copy. Instruction 28 

states that the Gayes bear “the burden of proving that the 

Thicke Parties copied original elements from the Gaye[s’] 

copyrighted work.” Instruction 35, in turn, defines the 

Gayes’ copyrighted work. Instruction 35 informed jurors 

that at the time the copyright in “Got To Give It Up” was 

registered, “only written music could be filed by a copyright 

owner with the Copyright Office as the deposit copy of the 

copyrighted work.” In contrast, “[r]ecordings of musical 

compositions could not be filed with the Copyright Office at 

that time.” The district court cautioned the jurors to 

distinguish between the commercial sound recording of “Got 

To Give It Up” and the deposit copy, noting that “although 

[a] sound recording[] of ‘Got to Give It Up’ . . . w[as] made 
WILLIAMS V. GAYE 29

and released commercially, th[e] particular recording[] [is] 

not at issue in this case, w[as] not produced into evidence, 

and w[as] not played for you during the trial.” What was at 

issue was “testimony from one or more witnesses from each 

side about what each thinks is shown on the deposit copy for 

each composition,” as well as “recorded versions of each 

work that each side has prepared based on what each side 

contends is shown in the deposit copy that was filed with the 

Copyright Office.” In short, the district court instructed the 

jurors that the deposit copy, not the commercial sound 

recording, was the copyrighted work in the case.

Harper House, Inc. v. Thomas Nelson, Inc., 889 F.2d 197 

(9th Cir. 1989), is not helpful to the Thicke Parties. In 

Harper House, we held that the district court erred in failing 

to give jury instructions that “adequately distinguish[ed] 

between protectable and unprotectable material.” 889 F.2d 

at 207–08. The copyrighted works at issue in Harper House 

were organizers, which receive “extremely limited 

protection” and are “compilations consisting largely of 

uncopyrightable elements,” such as “blank forms, common 

property, or utilitarian aspects.” Id. at 205, 207–08.

Suffice to say, musical compositions are not like 

organizers, and this case is easily distinguishable. The jury 

never heard the commercial sound recording. Elements 

indisputably present only in the sound recording, such as the 

use of cowbell and party noises, were never played at trial. 

Had that been the case, the district court would have had to 

instruct the jury to distinguish between elements in the 

commercial recording and elements in the deposit copy. 

Instead, the jury heard sound clips edited to capture elements 

that the experts testified were in the deposit copy. The 

question of which expert to believe was properly confided to 

the jury.
30 WILLIAMS V. GAYE

The district court did not err in giving Instruction 43.

B. The District Court Did Not Abuse its Discretion 

in Admitting Portions of Finell and Dr. Monson’s 

Testimony.

We review the district court’s evidentiary rulings for 

abuse of discretion. Wagner v. County of Maricopa, 

747 F.3d 1048, 1052 (9th Cir. 2013). The Thicke Parties 

contend that the district court abused its discretion in 

admitting portions of Finell and Dr. Monson’s expert 

testimony, arguing that they based their testimony on 

unprotectable elements. We disagree.

1. Finell’s Testimony

The Thicke Parties object only to three portions of 

Finell’s testimony: her testimony regarding “Theme X,” the 

descending bass line, and the keyboard parts. Finell testified 

that “Theme X,” the descending bass line, and the keyboard 

rhythms were in the deposit copy.

Finell was cross-examined for four hours. During crossexamination, Finell conceded that the notes of “Theme X” 

were not written on the sheet music, and she was questioned 

about her testimony that the notes of “Theme X” were 

implied in the deposit copy. She also acknowledged that the 

bass melody she presented at trial differed from that notated 

in the deposit copy. She was impeached with her deposition 

testimony, in which she admitted that the rhythm of the 

keyboard parts in the sound recording of “Got To Give It 

Up” is not notated in the deposit copy.

Wilbur disputed her testimony, opining that “Theme X,” 

the descending bass line, and the keyboard rhythms are not 

contained in the deposit copy. The dispute boiled down to a 
WILLIAMS V. GAYE 31

question of whose testimony to believe. Both experts 

referenced the sound recording.13 Both experts agreed that 

sheet music requires interpretation.14 The question of whose 

interpretation of the deposit copy to credit was a question 

properly left for the jury to resolve. See Three Boys Music, 

212 F.3d at 485–86 (“We refuse to interfere with the jury’s 

credibility determination[.]”). Therefore, the district court 

did not abuse its discretion by permitting Finell’s testimony.

2. Dr. Monson’s Testimony

The Thicke Parties argue that the district court abused its 

discretion in allowing Dr. Monson to play audio “mash-ups” 

superimposing Marvin Gaye’s vocals from “Got To Give It 

Up” onto the accompaniment in “Blurred Lines,” and vice 

versa. They argue that the “mash-ups” contained 

 13 Wilbur initially relied upon the commercial sound recording of 

“Got To Give It Up” to prepare her transcriptions. She continued to rely 

upon her transcriptions from the commercial sound recording, finding 

that they were substantially the same as the transcriptions prepared from 

the deposit copy.

14 On cross-examination, Wilbur acknowledged that a lead sheet 

reflects a simplified version of a chord pattern in a composition, and that 

chord notation is merely representational.

Wilbur also acknowledged that she relied on her interpretation of 

what was contained within the lead sheet to create her recording of “Got 

To Give It Up.” She admitted that she made choices to deviate from the 

sheet music, and that her choices were informed by her musical training 

and knowledge. For example, despite the sheet music’s instruction to 

continue playing a bass line throughout the song, she chose not to do so 

in certain parts of the song, knowing that playing the bass line would 

clash with certain chords.
32 WILLIAMS V. GAYE

unprotectable elements, such as the keyboard parts, bass 

melodies, and Marvin Gaye’s vocals.15

This argument faces the same hurdle as the Thicke 

Parties’ objection to Finell’s testimony. Dr. Monson 

testified that there were structural similarities between the 

two songs at a sectional level and at a phrasing level, and 

used the “mash-ups” to demonstrate the songs’ shared 

harmonic and melodic compatibility. We have permitted 

similar expert testimony in the past. Cf. Swirsky, 376 F.3d 

at 845–47 (holding that district court erred in discounting 

expert’s testimony regarding structural similarities between 

two choruses). Dr. Monson was cross-examined on her 

opinion, and the jury was free to weigh her testimony as it 

saw fit.

Our decision in Three Boys Music confirms that the 

district court acted within its discretion. Three Boys Music

was a 1909 Act copyright infringement case in which the 

jury heard not only a rendition of the deposit copy, see 

212 F.3d at 486, but the complete commercial sound 

recording of the copyrighted song. Although the sufficiency 

of the deposit copy arose in the context of subject matter 

jurisdiction in Three Boys Music, our treatment of the issue 

lends support for our present conclusion. In Three Boys 

Music, the defendants argued that there were “inaccuracies 

in the deposit copy.” 212 F.3d at 486–87. While the 

plaintiffs’ expert testified that “the song’s essential 

elements” were in the deposit copy, the defendants argued 

that “the majority of the musical elements that were part of 

 15 Although the “mash-ups” used Marvin Gaye’s vocals, the parties

have not disputed whether Marvin Gaye’s vocals were notated in the 

deposit copy.
WILLIAMS V. GAYE 33

the infringement claim” were not in the deposit copy. Id. at 

486. Despite the fact that the jury heard the complete sound 

recording, which differed from the deposit copy, we still 

upheld the jury’s verdict finding for the plaintiffs.16 Id. at 

486–87.

Here, the district court excluded the commercial sound 

recording of “Got To Give It Up” from trial, and vigilantly 

policed the admission of testimony throughout trial, 

repeatedly instructing counsel to ensure that the experts 

tethered their testimony to the sheet music. The district court 

did not abuse its discretion in admitting portions of the 

Gayes’ experts’ testimony.

C. The Verdict Was Not Against the Clear Weight of 

the Evidence.

The Thicke Parties argue that the verdict is against the 

clear weight of the evidence, maintaining that there is no 

extrinsic or intrinsic similarity between the two songs.

We are bound by the “‘limited nature of our appellate 

function’ in reviewing the district court’s denial of a motion 

for a new trial.” Lam, 869 F.3d at 1084 (quoting Kode, 

 16 It appears that factfinders have listened to commercial sound 

recordings in other music copyright infringement cases governed by the 

1909 Act. See, e.g., Repp v. Webber, 892 F. Supp. 552, 558 (S.D.N.Y. 

1995) (“Having listened to the two songs at issue, however, the Court 

cannot say as a matter of law that they do not share any substantial 

similarities.”); Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 

420 F. Supp. 177, 180 (S.D.N.Y. 1976) (noting that the similarity 

between the songs “is perfectly obvious to the listener”), aff’d sub nom.

ABKCO Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d 988 (2d Cir. 

1983); N. Music Corp. v. King Record Distrib. Co., 105 F. Supp. 393, 

398 (S.D.N.Y. 1952) (“We have suffered through the playing of the 

commercial recordings.”).
34 WILLIAMS V. GAYE

596 F.3d at 612). So long as “there was some ‘reasonable 

basis’ for the jury’s verdict,” we will not reverse the district

court’s denial of a motion for a new trial. Id. (quoting 

Molski, 481 F.3d at 729). “[W]here the basis of a Rule 59 

ruling is that the verdict is not against the weight of the 

evidence, the district court’s denial of a Rule 59 motion is 

virtually unassailable.” Id. (quoting Kode, 596 F.3d at 612). 

When that is the case, we reverse “only when there is an

absolute absence of evidence to support the jury’s verdict.” 

Id. (quoting Kode, 596 F.3d at 612). “It is not the courts’ 

place to substitute our evaluations for those of the jurors.” 

Union Oil Co. of Cal. v. Terrible Herbst, Inc., 331 F.3d 735, 

743 (9th Cir. 2003). Of note, we are “reluctant to reverse 

jury verdicts in music cases” on appeal, “[g]iven the 

difficulty of proving access and substantial similarity.”17 

Three Boys Music, 212 F.3d at 481.

The Thicke Parties face significant, if not 

unsurmountable, hurdles. First, we are generally reluctant to 

disturb the trier of fact’s findings, and have made clear that 

“[w]e will not second-guess the jury’s application of the 

intrinsic test.” Id. at 485. Second, our review is necessarily 

deferential where, as here, the district court, in denying the 

Rule 59 motion, concluded that the verdict was not against 

the clear weight of the evidence. Finell testified that nearly 

every bar of “Blurred Lines” contains an area of similarity 

to “Got To Give It Up.” Even setting aside the three 

elements that trouble the Thicke Parties (“Theme X,” the 

bass line, and the keyboard parts), Finell and Dr. Monson 

 17 Our conclusion in Three Boys Music provides an example of the 

deference we must apply in reviewing the jury’s verdict. Although that 

case presented “a weak case of access and a circumstantial case of 

substantial similarity,” we held that “neither issue warrants reversal of 

the jury’s verdict.” 212 F.3d at 486.
WILLIAMS V. GAYE 35

testified to multiple other areas of extrinsic similarity, 

including the songs’ signature phrases, hooks, bass 

melodies, word painting, the placement of the rap and 

“parlando” sections, and structural similarities on a sectional 

and phrasing level. Thus, we cannot say that there was an 

absolute absence of evidence supporting the jury’s verdict.

We conclude that the district court did not abuse its 

discretion in denying the Thicke Parties’ motion for a new 

trial.

IV.The Awards of Actual Damages and Profits and the 

District Court’s Running Royalty Were Proper.

A. The Award of Damages Was Not Based on Undue 

Speculation.

We afford “great deference” to a jury’s award of 

damages and will uphold the award “unless it is ‘clearly not 

supported by the evidence’ or ‘only based on speculation or 

guesswork.’” In re First All. Mortg. Co., 471 F.3d 977, 1001 

(9th Cir. 2006) (quoting L.A. Mem’l Coliseum Comm’n v. 

Nat’l Football League, 791 F.2d 1356, 1360 (9th Cir. 1986)). 

We will uphold an award of hypothetical-license damages 

“provided the amount is not based on ‘undue speculation.’” 

Oracle Corp. v. SAP AG, 765 F.3d 1081, 1088 (9th Cir. 

2014) (quoting Polar Bear Prods., Inc. v. Timex Corp., 

384 F.3d 700, 709 (9th Cir. 2004)). “The touchstone for 

hypothetical-license damages is ‘the range of [the license’s] 

reasonable market value.’” Id. (alteration in original) 

(quoting Polar Bear Prods., Inc., 384 F.3d at 709)).

Here, the jury awarded the Gayes actual damages in the 

amount of 50% of the publishing revenues for “Blurred 

Lines.” The Thicke Parties ask us to vacate the award of 

$3,188,527.50 (remitted by the district court from the jury’s 
36 WILLIAMS V. GAYE

original award of $4 million),18 because it was based upon 

an unduly speculative hypothetical license rate of 50%. We 

disagree.

The Gayes called Nancie Stern, an industry expert with 

over twenty years of experience in negotiating and assigning 

valuations for the use of portions of older musical 

compositions in new compositions. Stern has performed 

such valuations thousands of times. Major labels, as well as 

renowned artists, have retained her services. Few other 

people or businesses perform her line of work.

Stern testified that the prototypical negotiation centers 

on the percentage of the new musical composition that the 

owner of the older composition should receive for the use. 

The industry standard assigns 50% for the music and 50% 

for the lyrics. Turning to the two songs at hand, Stern opined 

that the value of the use of “Got To Give It Up” in “Blurred 

Lines” would have been 50% had the Thicke Parties sought 

a license pre-release. Had the Thicke Parties sought a 

license post-release, the valuation would range between 75% 

to 100% percent. Stern arrived at her conclusion by 

reviewing “snippets” of the two songs and “A-B’ing” them, 

or playing them back and forth.19 Stern’s methodology and 

 18 The district court concluded that it had erred in informing the jury 

that the publishing revenues amounted to $8 million, where the parties 

had stipulated that the publishing revenues totaled $6,377,055. Having 

determined that the jury applied a royalty rate of 50% to the publishing 

revenues, the district court remitted the damages award from $4 million 

to $3,188,527.50, which is 50% of $6,377,055.

19 Although the Thicke Parties contend that Stern impermissibly 

based her testimony on the sound recording of “Got To Give It Up,”

Stern testified that her opinion was based solely on the edited clips 

approved for trial.
WILLIAMS V. GAYE 37

opinion were not unduly speculative, but tethered to her deep 

industry expertise.

In an attempt to buttress their position, the Thicke Parties 

cite to two decisions which are distinguishable. In Oracle, 

we held the jury’s award of $1.3 billion in hypotheticallicense damages to be unduly speculative because “the 

evidence presented at trial failed to provide ‘the range of the 

reasonable market value’” underlying the actual damages 

award. 765 F.3d at 1089 (quoting Polar Bear Prods., Inc., 

384 F.3d at 709)). Oracle’s evidence was based on projected 

benefits and costs, and Oracle lacked a history of granting 

comparable licenses and provided no evidence of 

“benchmark” licenses in the industry. See id. at 1091–93. 

“Although a copyright plaintiff need not demonstrate that it 

would have reached a licensing agreement with the infringer 

or present evidence of ‘benchmark’ agreements in order to 

recover hypothetical-license damages,” we observed that “it 

may be difficult for a plaintiff to establish the amount of such 

damages without undue speculation in the absence of such 

evidence.” Id. at 1093.

Here, as in Oracle, there is no evidence of a prior 

benchmark license agreement between the Thicke Parties 

and the Gayes. However, in contrast to Oracle, the Gayes 

tethered their hypothetical license damages to evidence of a 

benchmark license in the industry. Instead of relying on 

undue speculation, the Gayes presented an expert who had 

extensive and specialized knowledge regarding the type of 

hypothetical license at issue. Stern opined, based on an 

industry standard and her evaluation of the songs involved, 

that the reasonable market value of a license would range 

between 50% pre-release and 75% to 100% post-release.

In Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292 

(Fed. Cir. 2011), the Federal Circuit held that the “25 percent 
38 WILLIAMS V. GAYE

rule of thumb,” used in patent cases “to approximate the 

reasonable royalty rate that the manufacturer of a patented 

product would be willing to offer to pay to the patentee 

during a hypothetical negotiation,” is a “fundamentally 

flawed tool.” 632 F.3d at 1312, 1315. The Federal Circuit 

observed that the 25% rule is “an abstract and largely 

theoretical construct” that “does not say anything about a 

particular hypothetical negotiation or reasonable royalty 

involving any particular technology, industry, or party.” Id. 

at 1317. The 50% standard Stern identified does not extend 

without bounds across art forms or different copyrightable 

media in the same way the 25% rule of thumb applied 

without regard to the industry or technology involved. 

Stern’s opinion was not based on abstraction, but on an 

industry standard and her expert assessment of the two 

songs. Her testimony was not unduly speculative, and did 

not render the damages award improper.

B. The Award of Profits Is Not Clearly Erroneous.

We review an apportionment of infringer’s profits for 

clear error. Cream Records, Inc. v. Joseph Schlitz Brewing 

Co., 864 F.2d 668, 669 (9th Cir. 1989) (per curiam); see also 

Three Boys Music, 212 F.3d at 487 (upholding jury’s 

apportionment of profits for lack of clear error). The burden 

is on the defendant to prove what percentage of its profits is 

not attributable to infringement. Three Boys Music, 212 F.3d 

at 487.

The Thicke Parties contend that the award of 

$1,768,191.88 in profits against Thicke and $357,630.96 

(remitted by the district court from the jury’s original award 

of $1,610,455.31) against Williams, which amounted to 

approximately 40% of their non-publishing profits from 

“Blurred Lines,” is excessive. They assert that the evidence 

supports a profits award of only 5%, citing Wilbur’s opinion 
WILLIAMS V. GAYE 39

that less than 5% of “Blurred Lines” contains elements 

allegedly similar to ones in “Got To Give It Up.”

We affirmed a similar profits award in Three Boys 

Music. See id. In Three Boys Music, the defendant presented 

evidence that only 10% to 15% of profits were attributable 

to the song’s infringing elements. Id. Despite the evidence, 

the jury attributed 66% of profits to the song’s infringing 

elements. Id. Here, the Thicke Parties bore the burden of 

proof. The jury was free to accept Wilbur’s testimony or 

instead credit Finell’s testimony that nearly every measure 

of “Blurred Lines” contains an element similar to “Got To 

Give It Up.” The jury’s choice to “apportion[] less than 

100% of the profits but more than the percentage estimates 

of [the Thicke Parties’] expert[] does not represent clear 

error.” Id.

C. The District Court Did Not Abuse its Discretion 

in Awarding the Gayes a Running Royalty at the 

Rate of 50%.

We review a district court’s decision to award equitable 

relief for abuse of discretion. Traxler v. Multnomah County, 

596 F.3d 1007, 1014 n.4 (9th Cir. 2010); see also Presidio 

Components, Inc. v. Am. Tech. Ceramics Corp., 702 F.3d 

1351, 1363 (Fed. Cir. 2012) (reviewing district court’s 

imposition of an ongoing royalty for abuse of discretion). 

Findings of fact are reviewed for clear error. See Traxler, 

596 F.3d at 1014 n.4.

The district court based the royalty rate on Stern’s 

testimony. For the same reasons set forth above, see supra 

Part VI.A, we conclude that the district court did not abuse 

its discretion in awarding the Gayes a running royalty at the 

rate of 50%.
40 WILLIAMS V. GAYE

V. The District Court Erred in Overturning the Jury’s 

General Verdict in Favor of Harris and the 

Interscope Parties. 

We review de novo a district court’s grant of judgment 

as a matter of law. Wallace v. City of San Diego, 479 F.3d 

616, 624 (9th Cir. 2007). We also review de novo a trial 

judge’s decision to disrupt a jury verdict on the basis that an 

erroneous instruction resulted in inconsistent verdicts. 

Westinghouse Elec. Corp. v. Gen. Circuit Breaker & Elec. 

Supply Inc., 106 F.3d 894, 901 (9th Cir. 1997).

Harris and the Interscope Parties contend that the district 

court erred in overturning the jury’s general verdicts finding 

in their favor. We agree. First, the Gayes waived any 

challenge to the consistency of the jury’s general verdicts. 

Second, even had the Gayes preserved their challenge, 

neither Federal Rule of Civil Procedure 50(b) nor our 

decisions in Westinghouse, 106 F.3d 894, and El-Hakem v. 

BJY Inc., 415 F.3d 1068 (9th Cir. 2005), conferred authority 

on the district court to upset the jury’s verdicts in this case. 

Third, as to Harris specifically, the district court erred for the 

additional reason that no evidence showed Harris was 

vicariously liable.

A. The Gayes Waived Any Challenge to the 

Consistency of the Jury’s General Verdicts.

A party “waive[s] its objection to the jury’s verdict . . .

by not objecting to the alleged inconsistency prior to the 

dismissal of the jury.” Home Indem. Co. v. Lane Powell 

Moss & Miller, 43 F.3d 1322, 1331 (9th Cir. 1995); see also 

Kode, 596 F.3d at 611 (recognizing waiver where “the 

moving party argues that the jury has rendered a verdict that 

contains two legal conclusions that are inconsistent with one 

another, and the moving party does not object before jury 
WILLIAMS V. GAYE 41

discharge”); Philippine Nat’l Oil Co. v. Garrett Corp., 

724 F.2d 803, 806 (9th Cir. 1984) (holding that a party 

“waived its right to object to the verdict by failing to object 

when the verdict was read”). The Gayes did not object to the 

jury’s verdicts prior to jury discharge. Nor did they object 

during a colloquy with the district court after the jury was 

discharged. They thus waived their challenge to any 

perceived inconsistencies between the jury’s general 

verdicts.20

B. The Gayes’ Failure to Make a Motion Under 

Federal Rule of Civil Procedure 50(a) Precluded 

Relief Under Rule 50(b).

“Under Rule 50, a party must make a Rule 50(a) motion 

for judgment as a matter of law before a case is submitted to 

the jury.” EEOC v. Go Daddy Software, Inc., 581 F.3d 951, 

961 (9th Cir. 2009). The Gayes did not make a Rule 50(a) 

motion. Because “failure to file a Rule 50(a) motion 

precludes consideration of a Rule 50(b) motion for judgment 

as a matter of law,” Tortu v. Las Vegas Metro. Police Dep’t, 

556 F.3d 1075, 1083 (9th Cir. 2009), Rule 50(b) did not 

authorize the district court to overturn the jury’s general 

verdicts and adjudge Harris and the Interscope Parties liable 

as a matter of law.21

 20 The Gayes have not addressed the issue of waiver on appeal.

21 There is one safety valve for what is otherwise a “harsh” rule: 

“Rule 50(b) ‘may be satisfied by an ambiguous or inartfully made 

motion’ under Rule 50(a).’” Go Daddy Software, Inc., 581 F.3d at 961

(quoting Reeves v. Teuscher, 881 F.2d 1495, 1498 (9th Cir. 1989)). The 

Gayes briefly argue that a colloquy between their counsel and the district 

court regarding jury instructions and verdict forms qualifies as an 

“ambiguous or inartfully made” Rule 50(a) motion. The colloquy falls 
42 WILLIAMS V. GAYE

C. Westinghouse and El-Hakem Do Not Apply.

The district court relied on two of our decisions to 

overturn the jury’s general verdicts: Westinghouse, 106 F.3d 

894, and El-Hakem, 415 F.3d 1068. Neither decision applies 

in this case.

In Westinghouse, we affirmed a district court’s decision 

to reconcile inconsistent general verdicts resulting from an 

erroneous jury instruction. See 106 F.3d at 902. There, the 

culprit was an erroneous instruction which added an extra 

element to an affirmative defense. Id. at 898. We held that 

where “it is possible to examine the pattern of jury verdicts 

and logically determine what facts a rational juror must have 

found in order to reach those verdicts,” and the error is 

traceable to an erroneous jury instruction, the district court 

may “apply the correct law to these implicit factual findings 

and thereby . . . remedy the harm from the erroneous jury 

instruction without the expense and delay of a new trial.” Id.

at 902.

However, Westinghouse involved a “seemingly rare 

situation.” Id. The Westinghouse exception to letting 

inconsistent general verdicts stand applies sparingly. “[I]n 

most cases where a jury renders inconsistent verdicts, the 

trial judge must allow those verdicts to stand because ‘it is 

unclear whose ox has been gored.’” Id. at 903 (quoting 

United States v. Powell, 469 U.S. 57, 65 (1984)). District 

courts may “reconcile the verdicts without intruding upon 

the jury’s fact-finding role” only under “very limited 

circumstances,” where “there is an identifiable error that 

only could have affected one of the verdicts,” “where the 

 

far short of the standard for a Rule 50(a) exception based on an 

“ambiguous or inartfully made” motion.
WILLIAMS V. GAYE 43

necessary factual findings can be determined from the 

pattern of verdicts,” and where there is “nothing to [be] 

gain[ed] from a new trial.” Id. at 902.

Those rare circumstances are not present in this case. 

The district court concluded that its instructions on 

distribution liability were inadequate, and that with clearer 

instructions, the jury would necessarily have found the 

Interscope Parties and Harris liable for distributing the 

infringing work. However, the instructions did not contain 

any error on par with the unmistakably erroneous instruction 

in Westinghouse.

Next, El-Hakem does not authorize the reconciliation of 

inconsistent general verdicts. It is clear that our holding in 

El-Hakem stemmed from law specific to special verdicts.22 

Indeed, we observed that “[w]hen confronted by seemingly 

inconsistent responses to special verdict interrogatories, a 

trial court has a duty to harmonize those responses whenever 

possible.” El-Hakem, 415 F.3d at 1074 (emphasis added). 

In contrast, there is no duty to reconcile inconsistent general 

verdicts. We have held, in accordance with the majority 

rule, that “legally inconsistent verdicts ‘may nonetheless 

stand on appeal even though inconsistent.’” Zhang v. Am. 

Gem Seafoods, Inc., 339 F.3d 1020, 1035 (9th Cir. 2003) 

(quoting Int’l Longshoremen’s & Warehousemen’s Union 

(CIO) v. Hawaiian Pineapple Co., 226 F.2d 875, 881 (9th 

 22 It is true, as the Gayes observe, that while we classified the 

verdicts in El-Hakem as special verdicts, they were functionally general 

verdicts. See El-Hakem v. BJY Inc., 262 F. Supp. 2d 1139, 1146 (D. Or. 

2003), aff’d, 415 F.3d 1068 (9th Cir. 2005). Notwithstanding this fact, 

El-Hakem is distinguishable for the reasons above, and for the additional 

reason that the parties in El-Hakem, unlike the parties in this case, moved 

for judgment as a matter of law. 415 F.3d at 1072.
44 WILLIAMS V. GAYE

Cir. 1955)). We see no reason to deviate from this rule 

today.

D. Harris Is Not Vicariously Liable.

The district court erred in entering judgment against 

Harris for the additional reason that the Gayes proffered no 

evidence establishing that Harris was secondarily liable for 

vicarious infringement. The Gayes argue, without citing to 

the record or to any law, that Harris is liable as a matter of 

law as a co-owner of the copyright who authorized the 

distribution of “Blurred Lines.”23 They are incorrect both 

legally and factually.

To be vicariously liable for copyright infringement, one 

must have “(1) the right and ability to supervise the 

infringing conduct and (2) a direct financial interest in the 

infringing activity.” Perfect 10, Inc. v. Visa Int’l Serv., 

Ass’n, 494 F.3d 788, 802 (9th Cir. 2007). A vicarious 

infringer “exercises control over a direct infringer when he 

has both a legal right to stop or limit the directly infringing 

conduct, as well as the practical ability to do so.” Perfect 10, 

Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1173 (9th Cir. 

2007).

No evidence was adduced at trial supporting a theory of 

vicarious liability. Harris, who did not testify at trial, 

independently wrote and recorded a rap verse that was added 

to the track seven months after Thicke and Williams created 

“Blurred Lines.” Neither Thicke nor Williams expected the 

later addition of a rap verse or had anything to do with its 

 23 The parties’ stipulation that Harris co-owned 13% of the musical 

composition copyright in “Blurred Lines” sheds no light on Harris’s role 

in the distribution process.
WILLIAMS V. GAYE 45

creation. The Gayes have cited nothing in the record 

demonstrating that Harris had either a right to stop the 

infringing conduct or the ability to do so, much less both.

We conclude that the district court erred in upsetting the 

jury’s general verdicts in favor of Harris and the Interscope 

Parties and entering judgment against them.

VI.The District Court Did Not Abuse its Discretion in 

Denying the Gayes’ Motion for Attorney’s Fees.

We review a district court’s decision on attorney’s fees 

for abuse of discretion. Stetson v. Grissom, 821 F.3d 1157, 

1163 (9th Cir. 2016).

The Gayes request that we vacate the district court’s 

order denying their motion for attorney’s fees and remand 

the case for reconsideration in light of Kirtsaeng v. John 

Wiley & Sons, Inc., 136 S. Ct. 1979 (2016). In Kirtsaeng, 

the Supreme Court reaffirmed the principle that, in 

exercising its authority under § 505 of the Copyright Act to 

award a prevailing party attorney’s fees, a court “should give 

substantial weight to the objective reasonableness of the 

losing party’s position.” Id. at 1983. The Court cautioned, 

however, that “the court must also give due consideration to 

all other circumstances relevant to granting fees; and it 

retains discretion, in light of those factors, to make an award 

even when the losing party advanced a reasonable claim or 

defense.” Id.

Here, the district court’s examination of objective 

reasonableness was but one factor in its analysis. The 

district court took the specific circumstances of the case into 

consideration, including the degree of success obtained, the 

purposes of the Copyright Act, the chilling effect of 

attorney’s fees, motivation, frivolousness, factual and legal 
46 WILLIAMS V. GAYE

unreasonableness, compensation, and deterrence. The 

district court did not abuse its discretion in denying the 

Gayes’ motion for attorney’s fees, and a remand on that issue 

is not warranted.

VII. The District Court Did Not Abuse its Discretion 

in Apportioning Costs Among the Parties.

We review the district court’s award of costs for abuse

of discretion. Draper v. Rosario, 836 F.3d 1072, 1087 (9th 

Cir. 2016).

Federal Rule of Civil Procedure 54(d)(1) authorizes the 

award of costs “to the prevailing party.” A “party in whose 

favor judgment is rendered is generally the prevailing party 

for purposes of awarding costs under Rule 54(d).” San 

Diego Police Officers’ Ass’n v. San Diego City Emps.’ Ret. 

Sys., 568 F.3d 725, 741 (9th Cir. 2009) (quoting 

d’Hedouville v. Pioneer Hotel Co., 552 F.2d 886, 896 (9th 

Cir. 1977)). Here, the district court entered judgment for the 

Gayes on their claim that “Blurred Lines” infringed their 

copyright in “Got To Give It Up,” but entered judgment for 

the Thicke Parties on the Gayes’ claim that “Love After 

War” infringed their copyright in “After the Dance.” The 

district court apportioned the award of costs accordingly, 

awarding the Gayes their costs for the “Blurred Lines” claim, 

and awarding the Thicke Parties their costs for the “Love 

After War” claim.

The Gayes urge us to adopt the Federal Circuit’s holding 

that “there can only be one prevailing party in a given case” 

for purposes of Rule 54(d)(1). Shum v. Intel Corp., 629 F.3d 

1360, 1367 (Fed. Cir. 2010). Despite the Federal Circuit’s 

singular construction of “the prevailing party,” it affirmed an 

award of costs functionally equivalent to the one the district 

court ordered in this case. See id. at 1364. The Federal 
WILLIAMS V. GAYE 47

Circuit held that “the district court did not abuse its 

discretion in awarding costs to each party with respect to the 

claims on which they each prevailed, then netting those sums 

to arrive at the final figure.” Id. Here, as in Shum, the district 

court in effect reduced the Gayes’ costs award “to reflect the 

extent of [their] victory.” Id. at 1370. This was not an abuse 

of discretion.24

VIII. You Can’t Get There from Here: The Dissent 

Ignores Governing Law that We Must Apply 

Given the Procedural Posture of the Case.

The dissent’s position violates every controlling 

procedural rule involved in this case. The dissent improperly 

tries, after a full jury trial has concluded, to act as judge, jury, 

and executioner, but there is no there there, and the attempt 

fails.

Two barriers block entry of judgment as a matter of law 

for the Thicke Parties. The dissent attempts to sidestep these 

obstacles: It finds that the Thicke Parties are entitled to 

judgment as a matter of law, but fails to explain the 

procedural mechanism by which this could be achieved. 

Given this flawed premise, it is perhaps unsurprising how 

little the dissent mirrors the majority opinion, and how far it 

 24 Additional authorities support our conclusion. See In re Paoli 

R.R. Yard PCB Litig., 221 F.3d 449, 469 (3d Cir. 2000) (“The general 

rule in this circuit and others is that a district court, in exercising its 

equitable discretion, may apportion costs between the prevailing and 

non-prevailing parties as it sees fit.”); Amarel v. Connell, 102 F.3d 1494, 

1524 (9th Cir. 1997) (instructing the district court to “await the outcome 

of the [Sherman Act] Section 1 claim to ascertain whether allocation of 

costs is necessary,” rather than “attempting to award partial costs at this 

juncture,” where defendants prevailed on the Section 2 claim, but we 

remanded the Section 1 claim for a new trial).
48 WILLIAMS V. GAYE

veers into analysis untethered from the procedural posture of 

this case.

First, the dissent incorrectly concludes that there are no 

procedural obstacles barring entry of judgment as a matter 

of law for the Thicke Parties. The dissent is unable to 

distinguish the Supreme Court’s decision in Ortiz, which 

prevents us from reviewing the district court’s order denying 

summary judgment after a full trial on the merits. 562 U.S. 

at 183–84. Even assuming our court’s limited exception for 

reviewing a denial of summary judgment for legal error, see 

Escriba, 743 F.3d at 1243, survives Ortiz without change, 

we reiterate, without recapitulating our earlier analysis, 

supra Part II, that the dissent’s attempt to distinguish Ortiz 

and latch onto the exception outlined in Escriba is futile in 

this case. This case “hardly present[s] ‘purely legal’ issues 

capable of resolution ‘with reference only to undisputed 

facts.’” Ortiz, 562 U.S. at 189. Even though the dissent’s 

musicological exegesis has no bearing on our analysis at this 

procedural stage of the case, it clearly shows that the facts in 

this case are hotly disputed and that the case does not just 

involve pure issues of law. The dissent cites no controlling 

law authorizing it to undertake its own summary judgment 

analysis at this stage of the case.

Second, the Thicke Parties, like the Gayes, failed to 

make a Rule 50(a) motion for judgment as a matter of law at 

trial. Their failure to do so “precludes consideration of a 

Rule 50(b) motion for judgment as a matter of law.” Tortu, 

556 F.3d at 1083.25 Just as the district court could not enter 

 25 Even in a case where the defendant argued that the district court 

“induced him not to file [a] Rule 50(a) motion,” we nonetheless adhered 

to the strict requirements of Rule 50, noting that the defendant still 

“could have filed a Rule 50(a) motion . . . before the matter had been 
WILLIAMS V. GAYE 49

judgment as a matter of law for the Thicke Parties, we cannot 

do so either.

This procedural limitation is well worth underscoring. 

We held, in a case in which a party made an oral Rule 50(a) 

motion, but failed to renew its motion, that the party “waived 

its challenge to the sufficiency of the evidence because it did 

not renew its pre-verdict Rule 50(a) motion by filing a postverdict Rule 50(b) motion.” Nitco Holding Corp. v. 

Boujikian, 491 F.3d 1086, 1089 (9th Cir. 2007). We further 

held that, under the Supreme Court’s decision in Unitherm 

Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 

(2006), the party’s failure to renew a Rule 50(a) motion 

“precluded [us] from exercising our discretion to engage in 

plain error review.” Nitco, 491 F.3d at 1089–90. We thus 

overruled our “prior decisions permit[ing] a discretionary 

plain error review” in the absence of a Rule 50(a) motion “as 

in conflict with controlling Supreme Court authority.” Id.

(citing Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) 

(en banc)). Thus, when we stitch together Rule 50’s 

requirements with our case law, we are left with this result: 

Because “a post-verdict motion under Rule 50(b) is an 

absolute prerequisite to any appeal based on insufficiency of 

the evidence,” id. at 1089, and because a Rule 50(a) motion 

is, in turn, a prerequisite for a Rule 50(b) motion, see Tortu, 

556 F.3d at 1081–83, an advocate’s failure to comply with 

Rule 50’s requirements gives us serious pause, and compels 

us to heighten the level of deference we apply on appeal.

 

submitted to the jury,” and holding that the defendant’s “disregard[]” of 

Rule 50’s “clear requirements” foreclosed the possibility of relief 

pursuant to Rule 50(b). Tortu, 556 F.3d at 1083. Here, the Thicke 

Parties could—and should—have filed a Rule 50(a) motion in order to 

preserve their ability to make a Rule 50(b) motion, regardless of whether 

or not the district court would have granted the motion.
50 WILLIAMS V. GAYE

The dissent cites Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 251–52 (1986), for the proposition that 

“reviewing a summary judgment ruling and a jury verdict” 

are two sides of the same coin. The dissent makes an 

important omission, however. The Supreme Court observed 

that the standard of review for a directed verdict motion 

resembles that for a motion for summary judgment:

[T]he “genuine issue” summary judgment 

standard is “very close” to the “reasonable 

jury” directed verdict standard: “The 

primary difference between the two motions 

is procedural; summary judgment motions 

are usually made before trial and decided on 

documentary evidence, while directed verdict 

motions are made at trial and decided on the 

evidence that has been admitted.”

Id. (quoting Bill Johnson’s Rests., Inc. v. NLRB, 461 U.S. 

731, 745 n.11 (1983)). As neither of the parties made a 

motion for a directed verdict, we lack a procedural 

mechanism for resurrecting a summary judgment-stage 

analysis. As we have emphasized repeatedly, our review on 

appeal is necessarily circumscribed.

The dissent cites a number of cases it claims support the 

proposition that a court must award judgment as a matter of 

law when it is able to determine substantial similarity, or 

lack thereof, under the extrinsic test. None of the cases the 

dissent cites, however, authorizes us to review a factbound 

summary judgment denial after a full trial on the merits, or 

to enter judgment as a matter of law in the absence of a Rule 

50(a) motion below. All of the cases cited in the dissent arise 

from a different procedural posture, and are clearly 

distinguishable. See Rentmeester v. Nike, Inc., No. 15-
WILLIAMS V. GAYE 51

35509, 2018 WL 1055846, at *2 (9th Cir. Feb. 27, 2018) 

(reviewing grant of motion to dismiss); Folkens v. Wyland 

Worldwide, LLC, 882 F.3d 768, 773 (9th Cir. 2018) 

(reviewing grant of summary judgment); Antonick v. Elec. 

Arts, Inc., 841 F.3d 1062, 1065 (9th Cir. 2016) (reviewing 

grant of judgment as a matter of law); Peters v. West, 

692 F.3d 629, 632 (7th Cir. 2012) (reviewing grant of 

motion to dismiss); Mattel, 616 F.3d at 912–13, 918 

(vacating equitable relief awarded by district court on other 

grounds, where the district court had “made its own 

infringement findings in determining whether Mattel was 

entitled to equitable relief” (emphasis added)); Benay, 

607 F.3d at 622 (reviewing grant of summary judgment); 

Newton v. Diamond, 388 F.3d 1189, 1190 (9th Cir. 2004) 

(reviewing grant of summary judgment); Calhoun v. 

Lillenas Publ’g, 298 F.3d 1228, 1232 (11th Cir. 2002) (per 

curiam) (reviewing grant of summary judgment). Moreover, 

to the extent the citations to unpublished dispositions in the 

dissent carry any weight, which we question, they, too, 

provide no support for what the dissent seeks to accomplish. 

See Briggs v. Sony Pictures Entm’t, Inc., No. 14-17175, 

2018 WL 1099694, at *1 (9th Cir. Mar. 1, 2018) (reviewing 

grant of summary judgment); Silas v. Home Box Office, Inc., 

No. 16-56215, 2018 WL 1018332, at *1 (9th Cir. Feb. 22, 

2018) (reviewing grant of motion to dismiss); Mintz v. 

Subaru of Am., Inc., No. 16-16840, 2017 WL 6331141, at *1 

(9th Cir. Dec. 12, 2017) (reviewing grant of motion to 

dismiss); Edwards v. Cinelou Films, 696 F. App’x 270, 270 

(9th Cir. 2017) (reviewing grant of motion to dismiss); 

Heusey v. Emmerich, 692 F. App’x 928, 928–29 (9th Cir. 

2017) (reviewing grant of motion to dismiss); Braddock v. 

Jolie, 691 F. App’x 318, 319 (9th Cir. 2017) (reviewing 

grant of motion for judgment on the pleadings); Basile v. 

Twentieth Century Fox Film Corp., 678 F. App’x 576, 576 

(9th Cir. 2017) (reviewing grant of motion to dismiss).
52 WILLIAMS V. GAYE

The dissent’s remaining alternative to entering judgment 

as a matter of law for the Thicke Parties is to vacate the 

judgment and remand for a new trial. Although the dissent 

does not state so expressly, it appears that the dissent would 

reverse the district court’s denial of the Thicke Parties’ 

motion for a new trial on grounds that the verdict is against 

the clear weight of the evidence.

Assuming, arguendo, that is the route the dissent wishes 

to pursue, it nevertheless runs into several hurdles. 

Critically, there is no reference to the deferential standard of 

review applicable to the district court’s denial of the Thicke 

Parties’ motion for a new trial. Indeed, there is no discussion 

of the district court’s denial of the motion for a new trial at 

all. It bears repeating, then, that we are bound by the 

“‘limited nature of our appellate function’ in reviewing the 

district court’s denial of a motion for a new trial.” Lam, 

869 F.3d at 1084 (quoting Kode, 596 F.3d at 612). As is the 

case here, “where the basis of a Rule 59 ruling is that the 

verdict is not against the weight of the evidence, the district 

court’s denial of a Rule 59 motion is virtually unassailable.” 

Id. (quoting Kode, 596 F.3d at 612). Under these 

circumstances, “only . . . an absolute absence of evidence to 

support the jury’s verdict” will result in reversal. Id. 

(quoting Kode, 596 F.3d at 612). “Although the trial judge 

can weigh the evidence and assess the credibility of 

witnesses, we may not.” Kode, 596 F.3d at 612; see also 

Landes Constr. Co. v. Royal Bank of Can., 833 F.2d 1365, 

1372 (9th Cir. 1987) (“[W]e cannot weigh the evidence for 

ourselves . . . .”).

In a thorough order, the district court reviewed the 

evidence presented at trial, and concluded that the verdict 

was not against the clear weight of the evidence. In faulting 

us for “tellingly refus[ing] to explain” the evidence 
WILLIAMS V. GAYE 53

supporting the verdict, the dissent ignores the weighty 

restrictions on our review at this procedural stage of the case. 

The dissent jettisons the constraints on our review, instead 

opting for the radical route of playing both expert and juror. 

The dissent weighs the experts’ credibility, resolves factual 

conflicts, and sets forth its own findings on the extrinsic 

test.26 We decline the dissent’s invitation to invade the 

province of the jury: Applying the proper standard of 

review, one simply cannot say truthfully that there was an 

absolute absence of evidence supporting the jury’s verdict in 

this case.

To buttress this point, in Swirsky, we reversed the district 

court’s grant of summary judgment of non-infringement, 

finding the district court erred, in large part, by conducting 

an analysis similar to the one the dissent has undertaken 

here. See 376 F.3d at 846–49. Two of our conclusions in 

Swirsky are particularly relevant here. First, we held that the 

district court erred in discounting the expert’s musical 

methodology on technical grounds. See id. at 846–47. For 

example, the district court rejected the expert’s “selective” 

choice to “discount[] notes that he characterize[d] as 

‘ornamental,’” and discredited the expert’s opinion that, 

“even though measure three of both choruses were not 

identical in numerical pitch sequence or note selection,” they 

emphasized the same scale degree and resolved similarly. 

Id. We observed that “[t]here is nothing inherently unsound 

 26 The dissent does not mention the fact that the jury also considered 

the intrinsic test in reaching its verdict. The dissent correctly stops short 

of explicitly “second-guess[ing] the jury’s application of the intrinsic 

test,” Three Boys Music, 212 F.3d at 485, which is reserved exclusively 

for the trier of fact, Benay, 607 F.3d at 624.
54 WILLIAMS V. GAYE

about [the expert’s] musicological methodology,” id. at 846, 

and we similarly decline to conclude otherwise in this case.

Second, we held in Swirsky that the district court “erred 

by basing its comparison of the two choruses almost entirely 

on a measure-by-measure comparison of melodic note 

sequences from the full transcriptions of the choruses.” Id.

at 847. In so holding, we reiterated our case law. We 

stressed that “substantial similarity can be found in a 

combination of elements, even if those elements are 

individually unprotected.” Id. at 848; see also Three Boys 

Music, 212 F.3d at 485 (“It is well settled that a jury may 

find a combination of unprotectible elements to be 

protectible under the extrinsic test because ‘“the over-all 

impact and effect indicate substantial appropriation.”’” 

(quoting Krofft, 562 F.2d at 1169)). In fact, “[e]ven if a 

copied portion be relatively small in proportion to the entire 

work, if qualitatively important, the finder of fact may 

properly find substantial similarity.” Swirsky, 376 F.3d at 

852 (alteration in original) (quoting Baxter v. MCA, Inc., 

812 F.2d 421, 425 (9th Cir. 1987)). Thus, even “an 

arrangement of a limited number of notes can garner 

copyright protection.” Id. at 851. If taken to its logical 

conclusion, the dissent’s musicological analysis and 

approach would sound the death knell for these governing 

legal principles.

Consider the principle that, at summary judgment, so 

long as the Gayes “presented ‘indicia of a sufficient 

disagreement concerning the substantial similarity of [the] 

two works,’ then the case must be submitted to a trier of 

fact.” Id. at 844 (alteration in original) (emphasis added) 

(quoting Brown Bag Software v. Symantec Corp., 960 F.2d 

1465, 1472 (9th Cir. 1992)). To require that a case be 

submitted to a trier of fact if there is any “indicia” of a 
WILLIAMS V. GAYE 55

disagreement regarding substantial similarity, only to 

impose on the district court the task of independently 

scrutinizing the expert testimony presented at trial, would 

turn our law on its head. Worse still, to require a district 

court to do so in the absence of a Rule 50 motion defies law 

and logic.

Moreover, the expert review conducted by the dissent 

does not provide a workable standard for district courts to 

follow. It is unrealistic to expect district courts to possess 

even a baseline fluency in musicology, much less to conduct 

an independent musicological analysis at a level as exacting 

as the one used by the dissent. After all, we require parties 

to present expert testimony in musical infringement cases for 

a reason. See id. at 845.

The dissent has failed to take into account another 

wrinkle that would ensue from vacating the judgment and 

remanding the case for a new trial. The Gayes have crossappealed protectively, challenging the district court’s 

interpretation of the 1909 Act, in the event a new trial is 

ordered. Even though a vacatur and remand would trigger 

the Gayes’ protective cross-appeal, the dissent does not 

wrestle with the merits of this issue. While the dissent is 

adamant that the scope of the Gayes’ copyright is limited to 

the four corners of the deposit copy, it provides no statutory 

interpretation or legal analysis supporting its assertion.

Lastly, the dissent prophesies that our decision will 

shake the foundations of copyright law, imperil the music 

industry, and stifle creativity. It even suggests that the 

Gayes’ victory will come back to haunt them, as the Gayes’ 

musical compositions may now be found to infringe any 

number of famous songs preceding them. Respectfully, 
56 WILLIAMS V. GAYE

these conjectures are unfounded hyperbole.27 Our decision 

does not grant license to copyright a musical style or 

“groove.” Nor does it upset the balance Congress struck 

between the freedom of artistic expression, on the one hand, 

and copyright protection of the fruits of that expression, on 

the other hand. Rather, our decision hinges on settled 

procedural principles and the limited nature of our appellate 

review, dictated by the particular posture of this case and 

controlling copyright law. Far from heralding the end of 

musical creativity as we know it, our decision, even 

construed broadly, reads more accurately as a cautionary tale 

for future trial counsel wishing to maximize their odds of 

success.

CONCLUSION

We have decided this case on narrow grounds. Our 

conclusions turn on the procedural posture of the case, which 

requires us to review the relevant issues under deferential 

standards of review. For the foregoing reasons, we reverse 

the district court’s entry of judgment against Harris and the 

Interscope Parties, and affirm the remainder of the district 

court’s judgment, and its order denying attorney’s fees and 

apportioning costs.

The parties shall bear their own costs on appeal.

AFFIRMED IN PART, REVERSED IN PART.

 27 Unlike the 1909 Act, the current copyright regime, established by 

the 1976 Act, protects “works of authorship” fixed in “sound 

recordings.” 17 U.S.C. § 102. Despite the dissent’s prediction that our 

decision will “strike[] a devastating blow to future musicians and 

composers everywhere,” the reality is that, going forward, a number of 

the contentious issues presented in this case will occur with less 

frequency with the passage of time.
WILLIAMS V. GAYE 57

NGUYEN, Circuit Judge, dissenting:

The majority allows the Gayes to accomplish what no 

one has before: copyright a musical style. “Blurred Lines” 

and “Got to Give It Up” are not objectively similar. They 

differ in melody, harmony, and rhythm. Yet by refusing to 

compare the two works, the majority establishes a dangerous 

precedent that strikes a devastating blow to future musicians 

and composers everywhere.

While juries are entitled to rely on properly supported 

expert opinion in determining substantial similarity, experts 

must be able to articulate facts upon which their 

conclusions—and thus the jury’s findings—logically rely. 

Here, the Gayes’ expert, musicologist Judith Finell, cherrypicked brief snippets to opine that a “constellation” of 

individually unprotectable elements in both pieces of music 

made them substantially similar. That might be reasonable 

if the two constellations bore any resemblance. But Big and 

Little Dipper they are not. The only similarity between these 

“constellations” is that they’re both compositions of stars.

I.

When a court, with the assistance of expert testimony, is 

able to determine substantial similarity (or lack thereof) 

under the extrinsic test, judgment must be given as a matter 

of law. See Benay v. Warner Bros. Entm’t, Inc., 607 F.3d 

620, 624 (9th Cir. 2010). If, for example, the defendant 

copied verbatim most of the plaintiff’s work, then the 

plaintiff is entitled to a finding of substantial similarity as a 

matter of law. See Calhoun v. Lillenas Publ’g, 298 F.3d 

1228, 1232 (11th Cir. 2002) (“[E]ven a casual comparison 

of the two compositions compels the conclusion that the two 

compositions are practically identical.”). Conversely, if the 

objective similarities between the two pieces are merely 
58 WILLIAMS V. GAYE

trivial, then a verdict for the plaintiff could not stand. See

Peters v. West, 692 F.3d 629, 636 (7th Cir. 2012) (affirming 

dismissal of infringement suit where the two songs “share[d]

only small cosmetic similarities”); Newton v. Diamond 

(“Newton II”), 388 F.3d 1189 (9th Cir. 2004) (affirming 

grant of summary judgment to defendants who appropriated 

a de minimis portion of the plaintiff’s musical composition 

and used it throughout their own work).

The majority, like the district court, presents this case as 

a battle of the experts in which the jury simply credited one 

expert’s factual assertions over another’s. To the contrary, 

there were no material factual disputes at trial. Finell 

testified about certain similarities between the deposit copy 

of the “Got to Give It Up” lead sheet and “Blurred Lines.” 

Pharrell Williams and Robin Thicke don’t contest the 

existence of these similarities. Rather, they argue that these 

similarities are insufficient to support a finding of substantial 

similarity as a matter of law. The majority fails to engage 

with this argument.

Finell identified a few superficial similarities at the 

“cell” level by focusing on individual musical elements, 

such as rhythm or pitch, entirely out of context. Most of 

these “short . . . pattern[s]” weren’t themselves protectable 

by copyright, and Finell ignored both the other elements with 

which they appeared and their overall placement in each of 

the songs. Her analysis is the equivalent of finding 

substantial similarity between two pointillist paintings 

because both have a few flecks of similarly colored paint. A 

comparison of the deposit copy of “Got to Give it Up” and 

“Blurred Lines” under the extrinsic test leads to only one 

conclusion. Williams and Thicke were entitled to judgment 

as a matter of law.
WILLIAMS V. GAYE 59

II.

A.

The purpose of copyright law is to ensure a robust public 

domain of creative works. See Sony Corp. of Am. v. 

Universal City Studios, Inc., 464 U.S. 417, 429 (1984). 

While the Constitution authorizes Congress to grant authors 

monopoly privileges on the commercial exploitation of their 

output, see U.S. Const. art. I, § 8, cl. 8, this “special reward” 

is primarily designed to motivate authors’ creative activity 

and thereby “allow the public access to the products of their 

genius.” Sony Corp., 464 U.S. at 429. Accordingly, 

copyrights are limited in both time and scope. See U.S. 

Const. art. I, § 8, cl. 8 (providing copyright protection only 

“for limited Times”); Sony Corp., 464 U.S. at 432 (“This 

protection has never accorded the copyright owner complete 

control over all possible uses of his work.”); see also Berlin 

v. E.C. Publ’ns, Inc., 329 F.2d 541, 544 (2d Cir. 1964)

(“[C]ourts in passing upon particular claims of infringement 

must occasionally subordinate the copyright holder’s 

interest in a maximum financial return to the greater public 

interest in the development of art, science and industry.”).

An important limitation on copyright protection is that it 

covers only an author’s expression—as opposed to the idea

underlying that expression. See 17 U.S.C. § 102(a) 

(“Copyright protection subsists . . . in original works of 

authorship fixed in any tangible medium of expression . . . 

from which they can be perceived, reproduced, or otherwise 

communicated . . . .”); id. § 102(b) (“In no case does 

copyright protection . . . extend to any idea, procedure, 

process, system, method of operation, concept, principle, or 

discovery, regardless of the form in which it is described, 

explained, illustrated, or embodied in [the author’s original] 

work.”). Copyright “encourages others to build freely upon 
60 WILLIAMS V. GAYE

the ideas and information conveyed by a work.” Feist 

Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349–50 

(1991) (citing Harper & Row Publishers, Inc. v. Nation 

Enters., 471 U.S. 539, 556–57 (1985)).

The idea/expression dichotomy, as this principle is 

known, “strikes a definitional balance between the First 

Amendment and the Copyright Act.” Bikram’s Yoga Coll. 

of India, L.P. v. Evolation Yoga, LLC, 803 F.3d 1032, 1037 

(9th Cir. 2015) (quoting Harper & Row, 471 U.S. at 556) 

(alteration in Harper & Row omitted). Because “some 

restriction on expression is the inherent and intended effect 

of every grant of copyright,” Golan v. Holder, 565 U.S. 302, 

327–28 (2012), the idea/expression dichotomy serves as one 

of copyright law’s “built-in First Amendment 

accommodations.” Eldred v. Ashcroft, 537 U.S. 186, 219 

(2003) (citing Harper & Row, 471 U.S., at 560).

Such accommodations are necessary because “in art, 

there are, and can be, few, if any, things, which in an abstract 

sense, are strictly new and original throughout.” Campbell 

v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994) (quoting 

Emerson v. Davies, 8 F. Cas. 615, 619 (C.C.D. Mass. 1845)

(Story, J.)). Every work of art “borrows, and must 

necessarily borrow, and use much which was well known 

and used before.” Id. (quoting Emerson, 8 F. Cas. at 619); 

see 1 Melville D. Nimmer & David Nimmer, Nimmer on 

Copyright § 2.05[B] (rev. ed. 2017) (“In the field of popular 

songs, many, if not most, compositions bear some similarity 

to prior songs.”).1 But for the freedom to borrow others’ 

 1 As an example, Williams and Thicke attempted to show the jury a 

video demonstrating how a common sequence of four chords serves as 

the harmonic backbone of innumerable songs. See Axis of Awesome, 

4 Chord Song (with song titles), YouTube (Dec. 10, 2009) 
WILLIAMS V. GAYE 61

ideas and express them in new ways, artists would simply 

cease producing new works—to society’s great detriment.

B.

“Blurred Lines” clearly shares the same “groove” or 

musical genre as “Got to Give It Up,” which everyone agrees 

is an unprotectable idea. See, e.g., 2 William F. Patry, Patry 

on Copyright § 4:14 (2017) (“[T]here is no protection for a 

communal style . . . .”). But what the majority overlooks is 

that two works in the same genre must share at least some 

protectable expression in order to run afoul of copyright law.

Not all expression is protectable. Originality, the “sine 

qua non of copyright,” accommodates authors’ need to build 

on the works of others by requiring copyrightable expression 

to be “independently created by the author” and have “at 

least some minimal degree of creativity.” Feist, 499 U.S. at 

345, 348. If an author uses commonplace elements that are 

firmly rooted in the genre’s tradition, the expression is 

unoriginal and thus uncopyrightable. See id. at 363.

Even original expression can be so intimately associated 

with the underlying idea as to be unprotectable. Under the 

doctrine of scènes à faire, “expressions that are standard, 

stock, or common to a particular subject matter or medium 

are not protectable under copyright law.” Satava v. Lowry, 

 

https://www.youtube.com/watch?v=5pidokakU4I (singing 38 popular 

songs over the same chord progression, ranging from “Let It Be” by the 

Beatles to “If I Were a Boy” by Beyoncé). “Blurred Lines” employs 

only two chords—the first two from this sequence. The district court 

prevented the jury from hearing this evidence. However, the court 

allowed the jury to hear mashups of “Blurred Lines” played together with 

“Got to Give It Up,” which the Gayes used to show that the two songs 

were harmonically similar.
62 WILLIAMS V. GAYE

323 F.3d 805, 810 (9th Cir. 2003) (citing See v. Durang, 

711 F.2d 141, 143 (9th Cir. 1983)). The doctrine of merger 

provides that “where an idea contained in an expression 

cannot be communicated in a wide variety of ways,” the 

“idea and expression may merge . . . [such] that even 

verbatim reproduction of a factual work may not constitute 

infringement.” Allen v. Acad. Games League of Am., Inc., 

89 F.3d 614, 617 (9th Cir. 1996); see also Rice v. Fox Broad. 

Co., 330 F.3d 1170, 1175 (9th Cir. 2003) (“[S]imilarities 

derived from the use of common ideas cannot be protected; 

otherwise, the first to come up with an idea will corner the 

market.” (quoting Apple Computer, Inc. v. Microsoft Corp., 

35 F.3d 1435, 1443 (9th Cir. 1994))).

The majority begins its analysis by suggesting that the 

Gayes enjoy broad copyright protection because, as a 

category, “[m]usical compositions are not confined to a 

narrow range of expression.” Maj. Op. at 19. But the 

majority then contrasts this protected category as a whole 

with specific applications of other protected categories—the 

“page-shaped computer desktop icon” in Apple Computer

(an audiovisual work) and the “glass-in-glass jellyfish 

sculpture” in Satava (a pictorial, graphic, and sculptural 

work)2—that were entitled only to thin copyright protection 

due to the limited number of ways in which they could be 

expressed. That’s a false comparison. Under the majority’s 

reasoning, the copyrights in the desktop icon and glass 

jellyfish should have been broad. Like musical 

 2 The Copyright Act expressly protects each of these categories. See

17 U.S.C. § 102(a)(2) (musical works); id. § 102(a)(5) (pictorial, 

graphic, and sculptural works); id. § 102(a)(6) (motion pictures and other 

audiovisual works).
WILLIAMS V. GAYE 63

compositions, both audiovisual works and pictorial, graphic, 

and sculptural works can be expressed in myriad ways.

More importantly, “[t]he mere fact that a work is 

copyrighted does not mean that every element of the work 

may be protected.” Feist, 499 U.S. at 348. Application of 

the extrinsic test “requires breaking the [copyrighted and 

allegedly infringing] works down into their constituent 

elements, and comparing those elements for proof of 

copying as measured by substantial similarity.” Swirsky v. 

Carey, 376 F.3d 841, 845 (9th Cir. 2004) (internal quotation 

marks omitted). “Because the requirement is one of 

substantial similarity to protected elements of the 

copyrighted work, it is essential to distinguish between the 

protected and unprotected material . . . .” Id. We then 

“apply the limiting doctrines, subtracting the unoriginal 

elements,” to determine how “broad” or “thin” the remaining 

copyright is. Ets-Hokin v. Skyy Spirits, Inc., 323 F.3d 763, 

766 (9th Cir. 2003) (citing Apple Computer, 35 F.3d at 

1442).

The majority doesn’t explain what elements are 

protectable in “Got to Give It Up,” which is surprising given 

that our review of this issue is de novo. See Mattel, Inc. v. 

MGA Entm’t, Inc., 616 F.3d 904, 914 (9th Cir. 2010). But 

by affirming the jury’s verdict, the majority implicitly draws 

the line between protectable and unprotectable expression 

“so broadly that future authors, composers and artists will 

find a diminished store of ideas on which to build their 

works.” Oravec v. Sunny Isles Luxury Ventures, L.C., 

527 F.3d 1218, 1225 (11th Cir. 2008) (quoting Meade v. 

United States, 27 Fed. Cl. 367, 372 (Fed. Cl. 1992)).

Worse still, the majority invokes the oft-criticized 

“inverse ratio” rule to suggest that the Gayes faced a fairly 

low bar in showing substantial similarity just because 
64 WILLIAMS V. GAYE

Williams and Thicke conceded access to “Got to Give It 

Up.”3 See Maj. Op. at 16. The issue, however, isn’t whether 

Williams and Thicke copied “Got to Give It Up”—there’s 

plenty of evidence they were attempting to evoke Marvin 

Gaye’s style. Rather, the issue is whether they took too 

much.

Copying in and of itself “is not conclusive of 

infringement. Some copying is permitted.” Newton II, 

388 F.3d at 1193 (quoting West Publ’g Co. v. Edward 

Thompson Co., 169 F. 833, 861 (E.D.N.Y. 1909) (Hand, J.)). 

Copying will only have legal consequences if it “has been 

done to an unfair extent.” Id. (quoting West Publ’g, 169 F. 

at 861). In determining liability for copyright infringement, 

the critical and ultimate inquiry is whether “the copying is 

substantial.” Id.

Requiring similarities to be substantial is of heightened 

importance in cases involving musical compositions. Sound 

recordings have “unique performance elements” that must 

be “filter[ed] out . . . from consideration.” Newton II, 

388 F.3d at 1194. Thus, the range of musical expression is 

necessarily more circumscribed when music is written down 

than when it is performed. “Given the limited number of 

musical notes (as opposed to words in a language), the 

combination of those notes and their phrasing, it is not 

 3 See 4 Nimmer & Nimmer, supra, § 13.03[D] (discussing “[t]he 

flawed proposition that powerful proof of access can substitute for 

demonstration of the requisite degree of substantial similarity”); 3 Patry, 

supra, § 9:91 (“The inverse ratio theory confuses fundamental principles 

of infringement analysis: access is relevant only in establishing the act 

of copying, not in establishing the degree thereof. Once copying is 

established, access is irrelevant and the inquiry shifts to the final stage 

of the infringement analysis, material appropriation. At that stage, 

substantial similarity is the sole issue.” (footnote omitted)).
WILLIAMS V. GAYE 65

surprising that a simple composition of a short length might 

well be susceptible to original creation by more than one 

composer.” Calhoun, 298 F.3d at 1232 (footnote omitted).

III.

The Gayes don’t contend that every aspect of “Blurred 

Lines” infringes “Got to Give It Up.” Rather, they identify 

only a few features that are present in both works. These 

features, however, aren’t individually protectable. And 

when considered in the works as a whole, these similarities 

aren’t even perceptible, let alone substantial.

Musical compositions are expressed primarily through 

the building blocks of melody, harmony, and rhythm.4 See

Newton v. Diamond (“Newton I”), 204 F. Supp. 2d 1244, 

1249 (C.D. Cal. 2002) (citing 3 Nimmer & Nimmer, supra, 

§ 2.05[D]); Randel, supra, at 481 (“The whole of music is 

often informally divided into three domains: melody, 

harmony, and rhythm.”); see generally Aaron Copland, 

What to Listen for in Music 33–77 (McGraw-Hill 1957). 

The deposit copy of “Got to Give it Up” employs these 

 4 Of course, these aren’t the only elements through which a musical 

idea can be expressed in tangible form. See Swirsky, 376 F.3d at 848–

49. Other elements include tempo (the speed at which a composition is 

played), dynamics (the volume of sound), and instrumentation. See id. 

Many elements can be broken down into constituent elements. For 

example, melody is a sequence of pitches played successively; harmony 

is a group of pitches played simultaneously; and a chord progression is 

a sequence of harmonies. See Don Michael Randel, The New Harvard 

Dictionary of Music 366, 481–82 (1986). The analysis will generally 

focus on the most relevant subset of elements, which depends on the 

nature of the music at issue. See Swirsky, 376 F.3d at 849. Finell did not 

compare the songs’ overall harmonies because she felt “that wasn’t the 

most important similarity.”
66 WILLIAMS V. GAYE

components through a melodic line, an introductory bass 

line, and chord indications, with the additional feature of 

lyrics.

The melodic line and the associated lyrics are notated 

throughout the deposit copy. The bass line is notated for 

only the first eight measures,5 at the end of which the phrase 

“bass simile” indicates that the bass line should continue in 

a similar manner. As is typical of a lead sheet, the chords 

are not expressed with individual notes indicating pitch and 

duration. Rather, the chords are described by name (e.g., 

“A7” for a chord containing the pitches A, C#, E, and G) at 

places in the song where the harmony changes.

A. Alleged Melodic Similarities

1. The “Signature” Phrase

Finell dubbed a 10-note melodic sequence in the deposit 

copy the “Signature Phrase.” She argued that it 

corresponded to a 12-note sequence in “Blurred Lines,” 

notwithstanding that “no two notes have the same pitch, 

rhythm and placement,” as the district court correctly 

observed.

Finell identified four similar elements, none of which is 

protectable: (a) each phrase begins with repeated notes; 

(b) the phrases have three identical pitches in a row in the 

first measure and two in the second measure; (c) each phrase 

 5 In musical notation, the notes signifying individual pitches are 

grouped into “measures” divided by vertical “bar” lines. Within a 

measure, the note immediately after the bar line, or “downbeat,” receives 

the greatest emphasis.
WILLIAMS V. GAYE 67

begins with the same rhythm; and (d) each phrase ends on a 

melisma (one word sung over multiple pitches).

Signature Phrase in “Got to Give It Up”

(Trial Exhibit 376-3)

Signature Phrase in “Blurred Lines”

(Trial Exhibit 376-3)

a. Repeated Notes

The Signature Phrase begins in “Got to Give It Up” with 

a note repeated four times. In “Blurred Lines,” it begins with 

a note repeated twice, followed by a different note, followed 

by the first note.6 The use of repeating notes is obviously 

not original to “Got to Give It Up.” Finell repeatedly used 

 6 Finell attempted to minimize the significance of the third note in 

“Blurred Lines” moving to a neighboring pitch rather than repeating. 

However, she previously testified that the neighboring pitch—a sharp 

second scale degree (indicated “#2” in her exhibit)—was a “broken rule” 

that “stands out.” Thus, the most prominent note in the four-note 

sequence in “Blurred Lines” is the one that differs from the 

corresponding sequence in “Got to Give It Up.”
68 WILLIAMS V. GAYE

the song “Happy Birthday to You” and the opening to 

Beethoven’s Fifth Symphony as musical examples. Each of 

these famous melodies from the nineteenth century begins 

with repeated notes. Therefore, the use of repeated notes is 

not protectable.

b. Pitch Similarity

Although the Signature Phrase starts on different pitches 

in each piece, Finell identified three consecutive ascending 

pitches that were the same in both pieces, and two 

consecutive descending pitches that were the same. She 

believed this similarity to be the most important.

In assessing the similarity of two pieces of music, it’s 

important to keep in mind “the limited number of notes and 

chords available to composers and the resulting fact that 

common themes frequently reappear in various 

compositions, especially in popular music.” Gaste v. 

Kaiserman, 863 F.2d 1061, 1068 (2d Cir. 1988) (citing 

Arnstein v. Edward B. Marks Music Corp., 82 F.2d 275, 277 

(2d Cir. 1936)). Substantial similarity “must extend beyond 

themes that could have been derived from a common source 

or themes that are so trite as to be likely to reappear in many 

compositions.” Id. at 1068–69 (citing Selle v. Gibb, 741 

F.2d 896, 905 (7th Cir. 1984)).

Three consecutive pitches is just the sort of common 

theme that will recur in many compositions.7 We have not 

 7 There are only 123 or 1,728 unique combinations of three notes, 

and many of them are unlikely to be used in a song. See Darrell v. Joe 

Morris Music Co., 113 F.2d 80, 80 (2d Cir. 1940) (per curiam) (“[W]hile 

there are an enormous number of possible permutations of the musical 

notes of the scale, only a few are pleasing; and much fewer still suit the 

infantile demands of the popular ear.”). Finell testified that it’s 
WILLIAMS V. GAYE 69

yet addressed whether three pitches are protectable as a 

matter of law. While “a single musical note would be too 

small a unit to attract copyright protection . . . , an 

arrangement of a limited number of notes can garner 

copyright protection.” Swirsky, 376 F.3d at 851. Thus, we 

held in Swirsky that a melody of seven notes is not 

unprotectable as a matter of law. Id. at 852.

In Newton II, we considered a three-note musical phrase 

that the defendants sampled (i.e., copied exactly) from the 

sound recording of a copyrighted musical composition and 

used repeatedly throughout their work. Although we did not 

decide whether this six-second segment was original enough 

to be protected, we held that “no reasonable juror could find 

[it] to be a quantitatively or qualitatively significant portion 

of the [four-and-a-half-minute] composition as a whole.” 

Newton II, 388 F.3d at 1195. The district court reached the 

originality issue. In a “scholarly opinion,” it ruled that the 

three-note phrase—even in combination with the 

background musical elements—was insufficiently original 

to warrant copyright protection. Id. at 1190; see Newton I, 

204 F. Supp. 2d at 1253 (“Many courts have found that 

nearly identical or more substantial samples are not 

susceptible to copyright protection.”).

The two- and three-note melodic snippets at issue here, 

taken in isolation from their harmonic context, are even less 

original than the three-note segment at issue in Newton. 

When played, each snippet lasts less than a second in a 

 

“unusual” to use the five notes that fall between the seven notes of the 

scale. Demand for unique three-note combinations would quickly 

exhaust their supply. In 2016 alone, the Copyright Office registered over 

40,000 sound recordings. See United States Copyright Office, Fiscal 

2016 Annual Report 17.
70 WILLIAMS V. GAYE

composition that lasts over four minutes. They are not 

individually protectable.

c. Rhythmic Similarity

The first measure of the Signature Phrase in both works 

begins with a rhythm of six eighth notes. A bare rhythmic 

pattern, particularly one so short and common, isn’t 

protectable. See Batiste v. Najm, 28 F. Supp. 3d 595, 616 

(E.D. La. 2014) “[C]ourts have been consistent in finding 

rhythm to be unprotectable.”); N. Music Corp. v. King 

Record Distrib. Co., 105 F. Supp. 393, 400 (S.D.N.Y. 1952)

(“[O]riginality of rhythm is a rarity, if not an 

impossibility.”); see also Berlin, 329 F.2d at 545 (“[W]e 

doubt that even so eminent a composer as plaintiff Irving 

Berlin should be permitted to claim a property interest in 

iambic pentameter.”). Here, the rhythmic pattern lasts 

approximately 1.5 seconds and consists of an eighth note 

repeated without any variation. Similar patterns are found 

in numerous other works. This element, devoid of its 

melodic and harmonic context, lacks any originality.

d. Melisma

The final syllable of the lyrics in each phrase spans 

multiple pitches—three in “Got to Give It Up” and two in 

“Blurred Lines.” Melisma, however, is “a common musical 

technique” and, as such, unprotectable. McDonald v. West, 

138 F. Supp. 3d 448, 458 (S.D.N.Y. 2015). Use of melisma 

on the final syllable of a lyrical phrase is particularly “basic 

and commonplace.” Id. (involving melisma on the final 

syllable of “We made it in America”). For example, 

any time one sings “Happy Birthday” to a person with a 

one-syllable name, the person’s name is sung as a two-note 

melisma at the end of the phrase “Happy Birthday, 

dear ____.”
WILLIAMS V. GAYE 71

e. The Signature Phrases as a Whole Are Not 

Substantially Similar

Even when each element is not individually protectable, 

“[t]he particular sequence in which an author strings a 

significant number of unprotectable elements can itself be a 

protectable element,” Metcalf v. Bochco, 294 F.3d 1069, 

1074 (9th Cir. 2002). Here, as Finell concedes, the Signature 

Phrase has “very few notes,” lasting less than four seconds. 

Therefore, even assuming that the Signature Phrase as a 

whole is protectable, its protection is thin.

There is very little similarity between the two songs’ 

Signature Phrases. Both melodies rise and fall. But they 

begin and end on different pitches. The highest, longest, 

most stressed pitch in each phrase is different—in “Blurred 

Lines,” this pitch is consonant with the underlying harmony; 

in “Got to Give It Up,” it is dissonant. One phrase has 10 

notes; the other, 12. The five identical pitches in each of the 

phrases have different rhythmic placement within the 

measure and therefore receive different stress. And only two 

of these identical pitches have similar underlying 

harmonies.8 The harmony changes halfway through the 

Signature Phrase in “Blurred Lines” but remains the same in 

“Got to Give It Up.” The lyrics in each phrase are different. 

The Signature Phrase occurs in different places within each 

piece. In “Got to Give It Up,” the Signature Phrase is the 

very first phrase sung. In “Blurred Lines,” the Signature 

 8 In “Got to Give It Up,” the entire Signature Phrase is harmonized 

to an A7 chord. In “Blurred Lines,” the first measure is harmonized to 

an E chord while the second measure is harmonized to an A chord. 

Seventh chords, such as A7, have the same three pitches as their 

underlying triads—here, an A chord—plus an additional pitch. See

Copland, supra, at 66–67. Finell explained that the unique pitch in a 

seventh chord “add[s] an extra color” to the harmony.
72 WILLIAMS V. GAYE

Phrase is not sung until 28 seconds later—after several lines 

of verse.

The various unprotected elements identified by Finell 

don’t even coincide with one another in that short, foursecond snippet. And her narrow focus on these elements 

ignored the different harmonies in each phrase. “To pull 

these elements out of a song individually, without also 

looking at them in combination, is to perform an incomplete 

and distorted musicological analysis.” Swirsky, 376 F.3d at 

848.

9

Given the lack of similarities between the Signature 

Phrases, there is no basis to conclude that they are 

substantially similar. “The most that can be said is that the 

two segments bear some relation to one another within a 

finite world of melodies. Given the limited musical 

vocabulary available to composers, this is far from enough 

to support an inference of [infringement].” Johnson v. 

Gordon, 409 F.3d 12, 22 (1st Cir. 2005).

 9 The majority fundamentally misunderstands Swirsky on this point. 

See Maj. Op. at 53–54. Swirsky did not hold that two works sharing 

multiple unprotected elements in disparate places are extrinsically 

similar. Were that the case, the entire Western canon would be 

extrinsically similar, since all of this music contains the same twelve 

individually unprotected notes. The difference between Swirsky and this 

case is that in Swirsky, there was a coincidence of the unprotected 

elements (chord progressions, rhythm, and pitch sequence) within each 

song that occurred at the same relative place (the chorus) in both. See

Swirsky, 376 F.3d at 848. Here, Finell examined the various elements in 

isolation, which is precisely what we criticized in Swirsky. See 376 F.3d 

at 848 (“[N]o approach can completely divorce pitch sequence and 

rhythm from harmonic chord progression, tempo, and key . . . .”).
WILLIAMS V. GAYE 73

2. The “Hook” Phrase

Finell describes the Hook Phrase as the four melodic 

pitches in “Got to Give It Up” sung to the lyrics “keep on 

dancin’.” She opined that “Blurred Lines” has similar Hook 

Phrases in two different places: one is the four pitches in the 

Signature Phrase sung to the lyrics “take a good girl”; the 

other is the five pitches sung to the lyrics “I hate these 

blurred lines.”

There are basic conceptual problems with Finell’s 

analysis. She describes the same four pitches in “Blurred 

Lines” as being similar to two unrelated phrases in “Got to 

Give It Up”—the Signature Phrase and the Hook Phrase. It 

is difficult to see how anything original in each of these two 

different phrases could be distilled into the same four-note 

phrase in “Blurred Lines.”

In any event, the Hook Phrase in the deposit copy lacks 

sufficient originality to be protected. Its sequence of four 

pitches, lasting 2.5 seconds, is common. For example, 

Beyoncé, Jennifer Hudson, and Anika Noni Rose 

memorably sang it to the lyrics, “We’re your dreamgirls.” 

See Henry Krieger & Tom Eyen, Dreamgirls measures 25–

26 (Universal—Geffin Music 1981).

Hook Phrase in “Got to Give It Up”
74 WILLIAMS V. GAYE

Hook Phrase in “Blurred Lines”

Hook Phrase in “Dreamgirls”

Even if the Hook Phrase pitches were protectable, there 

is no substantial similarity between its expression in the two 

songs. See Arnstein v. Edward B. Marks Music Corp., 82 

F.2d 275, 277 (2d Cir. 1936) (Hand, J.) (“The first phrase of 

the infringing chorus consists of the same four notes as the 

first phrase of the copyrighted song; that particular sequence 

can be found in several earlier musical pieces and its 

spontaneous reproduction should be no cause for 

suspicion.”).

At most, three of the four pitches are the same,10 and the 

different pitch is sung to what Finell described as the “money 

words” on “the strongest beat.” The phrase’s rhythms and 

underlying harmonies are different. Moreover, the phrases 

are sung at different places in each song. In “Got to Give It 

Up,” the Hook Phrase is sung at the end of part 1 in a fade 

 10 Finell cited two examples of the Hook Phrase in “Blurred Lines,” 

but they share only the last two pitches of their four- and five-note 

sequences. These two shared pitches are both tonic notes, which Finell 

described as “very common” in melodies.
WILLIAMS V. GAYE 75

out. In “Blurred Lines,” it is sung as the chorus in the middle 

of the song.

3. Theme “X”

Theme X refers to another four-note melodic sequence. 

In the deposit copy, Theme X is sung to the lyrics “Fancy 

lady.” In “Blurred Lines,” it is first sung to the lyrics “If you 

can’t hear.” Like the Hook Phrase, Theme X is both 

unprotectable and objectively dissimilar in the two songs.

Theme X in “Got to Give It Up”

Theme X in “Blurred Lines”

Theme X in “Happy Birthday to You”

The pitches and rhythm of Theme X in the deposit copy 

are identical to those sung to “Happy Birthday” and 

numerous other songs. None of the Theme X pitches in the 
76 WILLIAMS V. GAYE

deposit copy are the same as in “Blurred Lines.” To see any 

correspondence between the two four-note sequences, one 

would have to shift and invert the pitches, a feat of musical 

gymnastics well beyond the skill of most listeners. Where 

short and distinct musical phrases require such contortions 

just to show that they are musically related, there is no basis 

to find them substantially similar. See Johnson, 409 F.3d at 

22; see also Arnstein, 82 F.2d at 277.

The harmonies accompanying Theme X also differ 

between “Got to Give It Up” and “Blurred Lines.” 

Structurally, Theme X appears in completely different places 

in the two songs. In the deposit copy, it repeats several times 

in succession near the end of the piece. In “Blurred Lines,” 

it is the very first line of verse near the beginning of the song 

and repeats periodically throughout the song.

B. Other Alleged Similarities

1. Keyboard Parts

Finell testified that the keyboard parts in “Got to Give It 

Up” (meaning the chords and their rhythms played over the 

bass line) had “many important similarities” to those in 

“Blurred Lines.” However, there are no keyboard parts in 

the deposit copy. Finell explained that a lead sheet is 

essentially “musical shorthand for musicians,” who “would 

understand how [the keyboard parts are] to be played.” But 

because “[a] sound is protected by copyright law only when 

it is ‘fixed in a tangible medium,’” Newton II, 388 F.3d at 

1194 (quoting 17 U.S.C. § 102(a)), the deposit copy’s 

unwritten keyboard parts are not protected expression.

To the extent the chord indications sufficiently express 

the keyboard parts, there is no substantial similarity between 

the two works. “Blurred Lines” contains only two chords 
WILLIAMS V. GAYE 77

throughout the entire piece—an A chord and an E chord—

that alternate every four measures. The deposit copy 

contains neither of these chords. The chords it does 

contain—A7, D7, E7, B7, Dm7, and Am7—change in a 

much more irregular pattern. For example, the first 16 

measures have a sustained A7 harmony, and the next 8 

measures change harmonies every measure.

2. Bass Line

Finell opined that the bass melodies in “Got to Give It 

Up” and “Blurred Lines” are similar. However, when 

comparing them, she showed the jury the version of the “Got 

to Give It Up” bass line that she had transcribed from the 

sound recording. Because several notes were different in the 

deposit copy, her testimony on this issue was of questionable 

value. See Newton II, 388 F.3d at 1196. It’s also doubtful 

that the unexpressed portions of the baseline beyond the first 

eight measures of the deposit copy are sufficiently fixed in a 

tangible medium to warrant protection.

Even assuming the implied bass line in the deposit copy 

is sufficiently fixed, it’s the type of expression that is so 

standard in the genre that it merges with the idea and is 

therefore unprotectable in and of itself. Cf. Shapiro, 

Bernstein & Co. v. Miracle Record Co., 91 F. Supp. 473, 474 

(N.D. Ill. 1950) (concluding that bass line was not 

copyrightable where it was “mechanical application of a 

simple harmonious chord”). Any thin protection that might 

lie in the “Got to Give It Up” bass line would not support a 

finding of substantial similarity between these two bass lines 

given their different notes, harmonies, and rhythms.
78 WILLIAMS V. GAYE

Bass Line in “Got to Give It Up” (Deposit Copy)

Bass Line in “Blurred Lines”

The only similarity between the bass lines is that they 

repeat the note A in most of the measures. However, in “Got 

to Give It Up” the note is syncopated so that it sounds before 

the downbeat in the second, third, and fourth measures, 

whereas in “Blurred Lines” the note is played on the 

downbeat. Moreover, the note A is the root of the chord in 

each song (A7 in “Got to Give It Up,” A in “Blurred Lines”). 

As the expert for Williams and Thicke testified without 

contradiction, it is commonplace for the root of a chord to 

appear in a bass line because it establishes the chord.

3. Word Painting, Parlando, and Lyrics

Word painting and parlando are common devices.11 As 

Finnell acknowledged, word painting has “been used for 

many centuries,” and parlando has been employed for “many 

years before . . . rap was used as an art form.” The deposit 

copy’s use of these techniques in the abstract is not 

protectable expression, and there is no evidence that the 

specific applications of these techniques in the two pieces 

are similar. To say these two songs are substantially similar 

 11 Word painting is a compositional technique in which the music 

can be used to illustrate the words in the lyrics, such as setting the word 

“higher” to an ascending melody. Parlando is spoken word or rap in the 

middle of a song.
WILLIAMS V. GAYE 79

because they employ devices common to songwriting would 

be like saying two songs are substantially similar because 

they both have guitar solos in the middle even though the 

solos themselves bear no resemblance. Similarly, lyrical 

themes about liberation and sexual activity are not 

protectable in the abstract. See Edwards v. Raymond, 22 F. 

Supp. 3d 293, 301 (S.D.N.Y. 2014) (citing Feist, 499 U.S. at 

344–45); see also Peters, 692 F.3d at 636.

C. Overall Lack of Similarity

Even considering all of these individually unprotectable 

elements together, see Metcalf, 294 F.3d at 1074, there is no 

evidentiary basis to conclude that the two works are 

substantially similar. See Guzman v. Hacienda Records &

Recording Studio, Inc., 808 F.3d 1031, 1040 (5th Cir. 2015)

(finding no similarity where “the alleged compositional 

similarities running between the songs in their entirety, i.e., 

their melodies, rhythmic patterns, lyrical themes, and 

instrumental accompaniment, were either common to the . . . 

genre or common in other songs”).

The two pieces have different structures. Finell 

acknowledged that “Got to Give It Up” lacks a chorus 

whereas “Blurred Lines” has a “pretty common structure for 

a popular song” in that it consists of a verse, pre-chorus, and 

chorus. The two songs’ harmonies share no chords.

The discrete elements identified by Finell don’t occur at 

the same time within the musical theme or phrase in each 

piece. And with the exception of parlando, the various 

themes and phrases she identified don’t occur in 

corresponding places in each piece. Thus, whether 

considered micro- or macroscopically, “Got to Give It Up” 

and “Blurred Lines” are objectively dissimilar. Williams 

and Thicke are entitled to judgment as a matter of law.
80 WILLIAMS V. GAYE

IV.

The majority insists that the verdict is supported by the 

evidence but tellingly refuses to explain what that evidence 

is. Instead, it defends its decision by arguing that a contrary 

result is impossible due to Williams and Thicke’s purported 

procedural missteps. Maj. Op. at 47–56. While the 

procedural mechanism for granting relief is beside the point 

given the majority’s holding, there’s no such obstacle here.

I agree that we normally are not at liberty to review the 

district court’s denial of summary judgment after a full trial 

on the merits. See Ortiz v. Jordan, 562 U.S. 180 (2011). 

This rule makes eminent sense. Once a trial has concluded, 

any issues relating to the merits of the parties’ dispute 

“should be determined by the trial record, not the pleadings 

nor the summary judgment record.” Id. at 184 (quoting 

15 Alan Charles Wright et al., Federal Practice & 

Procedure § 3914.10 (2d ed. 1992 & Supp. 2010)). 

However, there is little difference between reviewing a 

summary judgment ruling and a jury verdict other than the 

source of the factual record, see Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 251–52 (1986), and here there are no 

material factual disputes. A completed trial does not prevent 

us from reviewing the denial of summary judgment “where 

the district court made an error of law that, if not made, 

would have required the district court to grant the motion.” 

Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1243 

(9th Cir. 2014).

12

 12 The majority surprisingly questions whether Escriba “survives” 

Ortiz. Maj. Op. at 22–23. Since Ortiz expressly declined to decide 

whether there is an exception to the general rule for “‘purely legal’ issues 

capable of resolution ‘with reference only to undisputed facts,’” 562 U.S. 
WILLIAMS V. GAYE 81

The majority conveniently ducks any review of the 

evidence by mischaracterizing the facts as “hotly disputed,” 

Maj. Op. at 48, and accusing me of “act[ing] as judge, jury, 

and executioner,” id. at 47, by “weigh[ing] the experts’ 

credibility, resolv[ing] factual conflicts, and set[ting] forth 

[my] own findings on the extrinsic test,” id. at 53. But my 

“musicological exegesis,” id. at 48, concerns evidence of 

extrinsic similarity that Finell presented at trial. No one 

disputes that the two works share certain melodic snippets 

and other compositional elements that Finell identified. The 

only dispute regarding these similarities is their legal 

import—are the elements protectable, and are the similarities 

substantial enough to support liability for infringement? See

Mattel, 616 F.3d at 914 (“We review de novo the district 

court’s determination as to the scope of copyright 

protection.” (citing Ets-Hokin, 225 F.3d at 1073)); Benay, 

607 F.3d at 624 (“Substantial similarity is a fact-specific 

 at 189, it didn’t undermine our case law. Regardless, the majority isn’t 

free to revisit circuit precedent absent intervening higher authority that 

is “clearly irreconcilable” with it. Miller v. Gammie, 335 F.3d 889, 899–

900 (9th Cir. 2003) (en banc). Even if the majority were correct that this 

is a factual matter and Williams and Thicke’s lack of a Rule 50(a) motion 

forfeited their right to challenge the evidentiary sufficiency—

notwithstanding the district court’s statement that it would not grant Rule 

50(a) motions “by either side,” but see Tortu v. Las Vegas Metro. Police 

Dep’t, 556 F.3d 1075, 1083 (9th Cir. 2009) (leaving open possibility that 

Rule 50(b) motion is not forfeited where district court instructs parties 

not to file Rule 50(a) motion); Thompson & Wallace of Memphis, Inc. v. 

Falconwood Corp., 100 F.3d 429, 435 (5th Cir. 1996) (citing district 

court’s instruction “not to make the rule 50(a) motion” as “legitimate 

excuse” for not making one)—we can still review the sufficiency of the 

evidence for plain error. See Nitco Holding Corp. v. Boujikian, 491 F.3d 

1086, 1089 (9th Cir. 2007) (citing Patel v. Penman, 103 F.3d 868, 878 

(9th Cir. 1996)) (contrasting Rule 50(b) motion as “absolute 

prerequisite” for appellate relief). A decision permitting entire genres of 

music to be held hostage to infringement suits is a “manifest miscarriage 

of justice,” Patel, 103 F.3d at 878, warranting relief.
82 WILLIAMS V. GAYE

inquiry, but it ‘“may often be decided as a matter of law.”’” 

(quoting Funky Films, Inc. v. Time Warner Entm’t Co., 462 

F.3d 1072, 1076 (9th Cir. 2006))).

By characterizing these questions as a factual dispute 

among experts, the majority lays bare its misconception 

about the purpose of expert testimony in music infringement 

cases. As with any expert witness, a musicologist can’t 

opine on legal conclusions, including the ultimate question 

here—substantial similarity. See Nationwide Transp. Fin. v. 

Cass Info. Sys., Inc., 523 F.3d 1051, 1058 (9th Cir. 2008); 

Michael Der Manuelian, Note, The Role of the Expert 

Witness in Music Copyright Infringement Cases, 57 

Fordham L. Rev. 127, 138 (1988) (“[E]xpert analysis is not 

relevant to the determination of substantial similarity of 

expression of ideas.”); see also Swirsky, 376 F.3d at 851

(“[A] musicologist is not an expert on what the term ‘idea’

means under the copyright laws.”). Her role is to identify 

similarities between the two works, describe their nature, 

and explain whether they are “quantitatively or qualitatively 

significant in relation to the composition as a whole,”

Newton II, 388 F.3d at 1196. The value of such testimony is 

to assist jurors who are unfamiliar with musical notation in 

comparing two pieces of sheet music for extrinsic similarity 

in the same way that they would compare two textual works.

This result would never stand in copyright cases 

involving works in other media. We “frequently” conclude 

as a matter of law that two works of language or visual art 

fail the extrinsic test for substantial similarity. Benay, 607 

F.3d at 624 (quoting Funky Films, 462 F.3d at 1077); see, 

e.g., Briggs v. Sony Pictures Entm’t, Inc., No. 14-17175, 

__ F. App’x __, 2018 WL 1099694, at *1 (9th Cir. Mar. 1, 

2018) (screenplays); Rentmeester v. Nike, Inc., No. 15-

35509, __ F.3d __, 2018 WL 1055846 (9th Cir. Feb. 27, 
WILLIAMS V. GAYE 83

2018) (photograph); Silas v. Home Box Office, Inc., No. 16-

56215, __ F. App’x __, 2018 WL 1018332 (9th Cir. Feb. 22, 

2018) (television show); Folkens v. Wyland Worldwide, 

LLC, 882 F.3d 768 (9th Cir. 2018) (drawing); Mintz v. 

Subaru of Am., Inc., No. 16-16840, __ F. App’x __, 2017 

WL 6331141 (9th Cir. Dec. 12, 2017) (advertising image and 

phrase); Edwards v. Cinelou Films, 696 F. App’x 270 (9th 

Cir. 2017) (film); Heusey v. Emmerich, 692 F. App’x 928 

(9th Cir. 2017) (screenplay and film); Braddock v. Jolie, 691 

F. App’x 318 (9th Cir. 2017) (novel and film); Basile v. 

Twentieth Century Fox Film Corp., 678 F. App’x 576 (9th 

Cir. 2017) (stories and film); Antonick v. Elec. Arts, Inc., 841 

F.3d 1062 (9th Cir. 2016) (video game), cert. denied, 138 S. 

Ct. 422 (2017); see also Mattel, 616 F.3d at 917–18 

(vacating jury determination of substantial similarity 

between dolls).

13 This case should be no different.

V.

The Gayes, no doubt, are pleased by this outcome. They 

shouldn’t be. They own copyrights in many musical works, 

each of which (including “Got to Give It Up”) now 

potentially infringes the copyright of any famous song that 

preceded it.14

 13 In faulting my citation of unpublished cases, see Maj. Op. at 50–

51, the majority misses the point. That we choose not to publish many 

of our numerous cases deciding substantial similarity as a matter of law 

shows only how uncontroversial these decisions are when they concern 

non-musical works.

14 “Happy Birthday to You” was still copyright protected when 

Marvin Gaye wrote Theme X. See Eldred, 537 U.S. at 262 (2003) 

(Breyer, J., dissenting).
84 WILLIAMS V. GAYE

That is the consequence of the majority’s uncritical 

deference to music experts.

Admittedly, it can be very challenging for judges 

untrained in music to parse two pieces of sheet music for 

extrinsic similarity. But however difficult this exercise, we 

cannot simply defer to the conclusions of experts about the 

ultimate finding of substantial similarity.15 While experts 

are invaluable in identifying and explaining elements that 

appear in both works, judges must still decide whether, as a 

matter of law, these elements collectively support a finding 

of substantial similarity. Here, they don’t, and the verdict 

should be vacated.

I respectfully dissent.

 15 Federal Rule of Evidence 706, which allows courts to appoint 

their own experts, may be useful in situations where the court has little 

musical expertise and the parties’ experts deliver starkly different 

assessments of two works’ similarity.