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Mar 12

Jury hits songwriters with $7.4 million verdict in copyright infringement case.

Posted on March 12, 2015 — by Michael Ely

          A California Federal Court jury recently awarded $7.4 million to the family of Marvin Gaye for copyright infringement against songwriters Robin Thicke and Pharrell Williams.  The jury found that the Thicke/Williams song “Blurred Lines” infringed upon the Marvin Gaye song “Got to Give it Up.”  There are some interesting intellectual property issues involved in this case and the case may have effects on the future of music and songwriting.  This case also brings to mind the Youtube video called “Pachelbel’s Rant” that supports the argument that modern music routinely borrows from historical music.  However, the issue that I found most interesting was the use of musicologist expert witnesses used by each side in the lawsuit.

          Dictionary.com defines musicology as the scholarly or scientific study of music.  There is even an American Musicology Society.  I had no idea that musicology or musicologists existed.  However, I should not be surprised, because I have seen a variety of different expert witnesses used during litigation.  The Federal Rules of Evidence direct that

                     “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

                    (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

                    (b) the testimony is based on sufficient facts or data;

                    (c) the testimony is the product of reliable principles and methods; and

                    (d) the expert has reliably applied the principles and methods to the facts of the case.”

          Importantly, the Rules of Evidence do not give a list of types of experts that are allowed to testify.  I have used experts as routine as accident reconstruction expert and economists, and as obscure as human factors experts and vision experts.  There seems to be an expert witness for any issue that arises. 

          It is important during litigation to retain the proper expert witness to cover all issues.  However, it is also important to retain experts that know how to instruct a jury.  Jury’s depend heavily on expert witnesses.  In cases involving obscure topics such as copyright infringement, patents and product defects, it is essential to retain experts who can effectively communicate their opinion to the jury.  The jury will be looking to the expert witness not only to render opinions, but to teach the topic to the jury.  I have found that the most effective expert witnesses are professors from universities, or any other experts who teach as part of their job.  These expert witnesses are the most effective at instructing a jury without being condescending or confusing.

          This is not to say that Mr. Pharrell or Mr. Thicke lost this case due to ineffective expert witness testimony.  From the news account, it appears that neither Defendant gave convincing testimony.  If you are in need of an attorney, please contact us at 512-562-7000 or mbe@elyreed.com.

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