A Good Offense is the Best Defense … Unless It’s Not Good Enough

Previously on this blog, I discussed the lawsuit filed by Robin Thicke and Pharrell Williams against the heirs to the estate of Marvin Gaye. In the lawsuit, Thicke and Williams sought a declaratory judgment that their hit song, Blurred Lines, did not infringe upon Marvin Gaye’s Got to Give it Up. As I then noted, by seeking a declaratory judgment rather than waiting for the heirs to sue, the case was an example of how sometimes the best defense is a good offense.

However, as Thicke and Williams learned, a good offense is no defense at all if the other side has a better one. Rather than settle the case out of court (which many claimed was a mistake), Thicke and Williams took the matter to trial. Last month, the jury sided with the heirs of Gaye’s estate, finding that the song Blurred Lines did indeed borrow elements from Gaye’s classic hit. The result was a $7.4 million judgment to the heirs.

Although the facts are unique, the case provides valuable lessons for all litigants. First, no matter how strong you think your case, trial by jury is risky. Here, all accounts suggest that Williams and Thicke were winning the case up to trial. They had also obtained a key ruling that excluded the full recorded version of Gaye’s hit; instead, the jury heard recordings containing only elements from the sheet music used to obtain the copyright. But as we now know, these victorious battles did not win the war.

Second, in considering the risks of trial, parties should consider the collateral costs that will be incurred even if they win. For instance, the Blurred Lines litigation disclosed facts that Williams, Thicke, and the record industry likely would have preferred to remain private. Among other things, we learned that Williams and Thicke earned approximately $5 million each on the song; the amount musicians earn from recorded songs is generally not made public. We also learned that Williams was the song’s primary author, contrary to Thicke’s prior assertions.

Given the inevitable disclosure of such facts, as well as the risk posed by a jury trial, it is surprising the case did not settle short of trial. Lawsuits like this one are common; but like most litigation, most of them do settle. (For instance, singer Sam Smith recently settled a similar claim by Tom Petty regarding Smith’s hit song, Stay With Me.) The Blurred Lines litigation reminds us why.

–Ryan Solomon