Costs/Intellectual Property: Ninth Circuit, In 2-1 Opinion, Affirms Denial Of Costs To Successful Defendants/Counterclaimants And Apportionment Of Costs Between Two Sides In Well-Publicized Case Involving Copyright Infringement Dispute

Dispute Involved Pharrell Williams’ “Blurred Lines” And Marvin Gaye’s “Got To Give It Up.”

            The Ninth Circuit in Williams v. Gaye, Case Nos. 15-56880 et al. (9^th Cir. Mar. 21, 2018) (published) faced having to resolve an appeal of the case by which Pharrell Williams’ 2013 song “Blurred Lines” was found to have infringed defendants’ copyright in Marvin Gaye’s 1977 song “Got To Give It Up.”  (The case involved claims and counterclaims among affiliated parties, with the Gaye side losing a counterclaim alleging that Thicke’s “Love After War” infringed Gaye’s “After The Dance.”)  After the merits battle below, the district court denied defendants/counterclaimants’ (Gaye side’s) request for attorney’s fees and apportioned costs among the parties based on their respective victories with respect to the “Blurred Line” and  “Love After War” claims.  The Ninth Circuit affirmed most of the results below, in a 2-1 opinion drawing a dissent by Circuit Judge Nguyen (who found no similarities as a matter of law between “Blurred Lines” and “Got To Give It Up”).

           The fees and costs rulings were affirmed on appeal.  The district court did not abuse its discretion in denying fees under section 505 of the Copyright Act because the record showed consideration for these factors:  objective reasonableness of the defense litigation positions; degree of success obtained; the purposes of the Copyright Act; the chilling effect of fees; motivation; frivolousness; factual and legal unreasonableness; compensation; and deterrence.

            With respect to apportioning costs, this was reasonable given the fact that both sides had victories when the “Love After War” result factored into the mix.