Blurred Lines and Appellate Preservation

Gaye Family lead counsel Richard Busch (left) explains the surprising preservation issues.

The higher the stakes in the litigation, the more important it is to have an appellate nerd in your corner, because you can’t make your arguments to the appellate court if you haven’t preserved them at trial. Most folks who follow copyright law are aware that the Ninth Circuit late last month upheld the jury verdict in favor of Marvin Gaye’s family holding that the song Blurred Lines infringed the copyright in Marvin Gaye’s Got to Give it Up. See Williams v. Gaye, 885 F. 3d 1150 (9th Cir. 2018) [.pdf]. And while there are a lot of fascinating copyright issues there, even more important are the appellate preservation issues — the lawyers representing Thicke and Williams tanked large portions of their appeal before they even got there by failing to speak up at two important points at the trial: At the close of plaintiff’s evidence, and before the jury was dismissed after rendering its verdict.

Failure to make a Rule 50(a) Motion

In Federal Court, the rule that covers judgment as a matter of law (also sometimes called judgment notwithstanding the verdict or JNOV from the Latin judgment non obstante veredicto) requires that in a jury trial the Defendant must make a motion at the close of plaintiff’s evidence (Rule 50(a)) and then renew that motion at the end of the case (Rule 50(b)) in order to preserve a challenge to the sufficiency of the evidence. The Defendants were left with arguing 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,” and should suffice for preservation purposes, but but the Court found that colloquy fell “far short” of even an inartful motion, and found sufficiency of the evidence unpreserved. Ouch. Williams v. Gaye, 885 F. 3d 1150, n.21 (9th Cir. 2018). In Florida, the equivalent requirement is for a motion for directed verdict.

Failure to Object to Jury’s Verdict

Defendant’s waived their objection to an alleged inconsistency in the jury’s verdict by failing to object before the jury was discharged. And this was not a controversial point — it was a pretty black letter rule that the court mentioned with citation to two older cases and moved on quickly. That objection must, must be made before the jury is discharged.

It can be very hard in the heat of battle — and trial can be a battle — to remember every possible preservation issue. That’s why we recommend you have an appellate specialist on your trial team. What you don’t want is to blur the lines of preservation.

Thank you to the panelists at the Florida Bar Business Law Section’s 9th Annual Intellectual Property Symposium for their fascinating presentations!