Now that a divided panel of the U.S. Court of Appeals for the Ninth Circuit has issued an amended opinion affirming the denial of a new trial motion and an order denying rehearing en banc in Williams v. Gaye (Williams), 2018 WL 3382875, No. 15-56880, Order and Amended Opinion (9th Cir. July 11, 2018) (the Amended Opinion), it is timely to consider whether the final affirmance of the jury verdict is likely to wreak havoc on musical creativity as some, including the dissent, have argued. The short answer is no. Our reasoning is set forth below.

The Debate

From the time that lawyers for Pharrell Williams and Robin Thicke (Williams-Thicke) commenced a declaratory judgment action in response to a claim letter from attorneys for the heirs of Marvin Gaye (The Gayes) alleging that Gayes’ 1977 hit “Got to Give It Up (Got To)” was infringed by the Williams-Thicke’s 2013 best-selling single “Blurred Lines,” a public debate has unfolded parallel to developments in court. Most recently, this debate has found purchase in the impassioned dissent from the Amended Opinion by Judge Jacqueline H. Nguyen, wherein she concludes by warning The Gayes, and, by extension, all songwriters, to be careful what they wish for: