INTELLECTUAL PROPERTY BLOG

Doug Bania from the San Diego consulting firm, Nevium Intellectual Property Solutions, testified as the Plaintiffs’ and Counter-Defendants’ Copyright Apportionment Expert testifying in the area of Damages and Apportionment.  Mr. Bania was engaged by King, Holmes, Paterno & Berliner to consult on behalf of their clients; Pharrell Williams, Robin Thicke and Clifford Harris, Jr. for the litigation matter in the USDC, Central District of California case captioned Pharrell Williams, et al. v. Bridgeport Music, Inc.; The “Blurred Lines” case.

Mr. Bania has over 13 years of experience analyzing, valuing and apportioning intellectual properties and intangible assets including song royalties for tax and estate purposes.  He has analyzed a wide range of intellectual properties, including trademarks, Internet assets, rights of publicity and copyrights in a variety of contexts.  Mr. Bania is a a Certified Licensing Professional (CLP) and holds a MA from San Diego State University in Television, Film and New Media Production; and a Bachelor’s Degree in Cinema from San Francisco State University.

Mr. Bania reviewed the history of the song “Blurred Lines” including the marketing, social media activity, videos and sales numbers and performed an analysis on the copyrights and the other elements related to the song and video to determine what portion of the song’s success was attributable to the alleged infringement at issue in the case.  Specifically, Mr. Bania described the typical structure of a composition and a sound recording of that composition and explained how rights are divided amongst the various copyrights. Mr. Bania identified the factors that contributed to the success of the composition and sound recording titled “Blurred Lines” and determined what portion of success of the song was due specifically to the use of certain musical elements found in Marvin Gaye, Jr.’s composition of the song “Got To Give It Up” that are claimed by the Defendants in this case.

A copyright protects the expression of an idea but not the actual product or process that is provided to customers.  Therefore, the copyrights that protect a song require additional resources such as recording facilities, human capital, marketing and distribution assets, and other tangible and intangible assets in order to generate revenues, profits and economic benefits from the song.  “Copyright protection alone does not create economic benefit, and the owner of a copyright must use additional assets and resources to generate economic benefits”, states Bania.

Mr. Bania explained to the Jury that copyrights depend on other assets and resources to generate revenue.  For example, in the music industry a songwriter who writes a song does not make money simply from the act of writing or committing the music and lyrics to paper.  The songwriter typically records the song and works with a record label to promote the resulting sound recording or works with a publisher to promote their song.  Similar to publishers, recording artists generally rely on the record label’s financial resources, relationships with radio, television and other media, and marketing and promotional skills in order generate economic benefit from the exploitation of their songs and the recordings thereof.

As the copyrights related to a song rely on other assets and resources to become successful and generate revenue, the copyrights do not provide 100% of the revenue, profits or success achieved from the sale of a song.  Bania said,  “A claim by a copyright holder based on 100% of achieved profits would overestimate the contribution of IP to the product allegedly using that IP”.

As a result of Mr. Bania’s analysis described, the success of “Blurred Lines” was due to a combination of factors beyond the Song itself, including substantial contributions from the videos, extensive marketing and promotional efforts; and social media discussions and promotions.  The success of “Blurred Lines” appears to have been the result of several factors not related to the claimed musical elements.

The claimed musical elements have made a minimal contribution to the success of the song.  The Videos, marketing and social media related to “Blurred Lines” each made substantial contributions to the success of the song, as measured using data from SoundScan.  If the Defendants are able to establish liability, the Defendants would only be entitled to a fraction of any economic benefits derived from the success of “Blurred Lines.”