This week, on July 11, 2018, the Ninth Circuit issued an order which both denied a petition to rehear its “Blurred Lines” decision en banc, which upheld the 2015 jury verdict that the hit song “Blurred Lines” by Pharrell Williams, Clifford Harris, Jr. (aka “T.I.”), and Robin Thicke infringed the copyright to Marvin Gaye’s “Got to Give it Up,” and amended its original opinion. Opinion. While the denial of the petition to rehear the case en banc is grabbing all the headlines, it is the amended opinion that stands to make the biggest impact on copyright law. The amended opinion quietly deletes all references to the oft-criticized inverse ratio rule. By taking out all references to the so-called inverse ratio rule in its amended opinion (and in the dissent), the Ninth Circuit may be signaling that the inverse ratio rule (considered and rejected by the Second Circuit more than 50 years ago) has finally danced its last dance in the Ninth Circuit.
As we pointed out in our 2011 article, as a practical matter, the so-called inverse ratio rule makes precisely no sense. As stated from time to time, under the inverse ratio “rule,” if the plaintiff establishes a high degree of access to its work by the defendants, a finding of copyright infringement may supposedly be based upon a lesser degree of similarity. Nonsense. As a matter of basic copyright law, no degree of access can substitute for a finding that the works are in fact substantially similar within the meaning of the Copyright Act. A court’s determination of whether there is substantial similarity of protectable expression is made by looking at the works and analyzing them. That analysis is totally unrelated to whether the defendant had no access, some access, had a lot of access or even had the plaintiff’s work posted on the wall of the writers’ room.
District courts within the Ninth Circuit have struggled with the so-called inverse ratio rule for years. Some judges have correctly determined that it makes no sense, and refuse to apply it. Other judges pay lip service to it, but then admit that they are not sure how it applies. Other judges have applied it, but it is totally unclear from the decisions as to how it was applied.
The bottom line is that a plaintiff must still prove substantial similarity regardless of how strong its evidence is that the defendant had access to the plaintiff’s work. This is true even where the defendant in fact copied from the plaintiff’s work. Even in that instance the plaintiff has to prove the full measure of substantial similarity of protectable expression within the meaning of the Copyright Act. Simply put, not all copying is unlawful.
The Second Circuit considered and rejected the inverse ratio rule more than 50 years ago (in 1961). In light of the Ninth Circuit’s amended opinion of July 11, 2018, and its deletion of all discussion of the so-called inverse ratio rule, it appears that the Ninth Circuit is, at long last, starting to catch up.