The Ninth Circuit has upheld a $5 million jury award for copyright infringement against Pharrell Williams and Robin Thicke.

A 2-1 majority led by Judge Milan Smith deferred to a jury's finding that Williams and Thicke copied Marvin Gaye's “Got to Give It Up” when they recorded “Blurred Lines.” The court also freed Clifford Harris, also known as T.I., of liability.

Dissenting Judge Jacqueline Nguyen accused her colleagues of being overly deferential to the jury in the case, saying the U.S. Court of Appeals for the Ninth Circuit's decision will permit “entire genres of music to be held hostage to infringement suits.”

Williams v. Gaye is a win for Arnold & Porter Kaye Scholer's Lisa Blatt and King & Ballow's Richard Busch, who argued on behalf of Gaye's heirs, who hold the copyright in “Got to Give It Up.”

Beyond the individual result, the case adds momentum to the idea among Ninth Circuit judges that jurors ought to be able to hear performances of allegedly infringed music performed by the author, rather than stripped down versions of the sheet music, even in cases governed by the 1909 Copyright Act. Blatt had told the Ninth Circuit it was like trying the case blindfolded and handcuffed.

That same issue was debated last week by a different Ninth Circuit panel reviewing a copyright claim over the Led Zeppelin song “Stairway to Heaven.”

Smith on Wednesday deemed the issue “unsettled” and said he believed that U.S. District Judge John Kronstadt of Los Angeles was the first to impose such a limit in the Williams case. He further suggested that Ninth Circuit precedent is not so restrictive.

“Blurred Lines” became an international sensation in 2013. Thicke, Williams and Harris are credited as co-authors. In an interview with GQ magazine, Thicke recalled telling Williams that “Got to Give It Up” was one of his favorite songs of all time, and that “we should make something like that, something with that groove.” The two started playing and “we literally wrote the song in about a half hour and recorded it.” Harris separately wrote a rap verse that was added to the song months later.

After the interviews were published, Gaye's heirs sued for infringement. The jury awarded about $7.3 million, which Kronstadt reduced to just over $5 million, plus a 50 percent royalty on future sales.

Smith emphasized in Wednesday's opinion that the Ninth Circuit had to review the jury's verdict deferentially, especially because neither party moved for judgment as a matter of law before the case was submitted.

He observed that expert witnesses testified to similarities between the songs' signature phrases, hooks, bass melodies, word painting and parlance. “Thus, we cannot say that there was an absolute absence of evidence supporting the jury's verdict,” Smith concluded. Judge Mary Murguia concurred.

Smith did reverse Kronstadt's post-trial ruling that Harris should be held liable along with Williams and Thicke.

Quinn Emanuel Urquhart & Sullivan represented Williams, Thicke and their music publisher. Sidley Austin partner Mark Haddad represented Harris' music publishers.

Nguyen argued in dissent that the case never should have gone to a jury. Instead, Kronstadt should have granted summary judgment. “The majority allows the Gayes to accomplish what no one has before: copyright a musical style,” Nguyen wrote.

The testimony from the Gaye heirs' experts was “the equivalent of finding substantial similarity between two pointillist paintings because both have a few flecks of similarly colored paint,” she wrote. The actual melody, harmony and rhythm of the songs are not objectively similar as a matter of law, she argued.

Nguyen repeatedly accused the majority of refusing to grapple with the musical elements of the song, many of which she said are shared by everyday compositions such as the “Happy Birthday” song.

Smith replied that the Supreme Court has forbidden appellate courts, except in rare circumstances, from reaching back to summary judgment decisions after cases go to trial. “The dissent improperly tries, after a full jury trial has concluded, to act as judge, jury and executioner,” Smith wrote, “but there is no there there, and the attempt fails.”