Sampling Case Against Jay-Z Dismissed Because No Substantial Similarity

Tufamerica Inc. v. WB Music Corp. et al., No. 1:13-cv-07874-LAK (SDNY filed 12/08/14) [Doc. 19].

The Court dismissed a claim against Jay-Z that was based on the sampling and use of the word “oh” in an audio recording and music video entitled Run This Town.  Plaintiff’s works were a composition and a pre-1972 sound recording thereof in each of which the word “oh” appears once.  The Court held that, even assuming that defendants copied, or “sampled,” a portion of plaintiff’s works, plaintiff had not stated a plausible claim because there was no substantial similarity.

According to the Court, "Run This Town bears very little and perhaps no similarity at all to [Plaintiff's song]. The melody and lyrics are entirely different. The lyrics do not contain the word 'oh'. And while the Court assumes, as plaintiff contends, that the alleged 'sample' of that word appears in the accused recording and video 42 separate times, it must be said also that it does so, if at all, only in the background and in such a way as to be audible and aurally intelligible only to the most attentive and capable listener."

The Court observed, in dicta, that plaintiff's usage of the word "oh" in the composition likely was not subject to copyright protection, though it may have been in the sound recording.  However, the Court found other grounds to dismiss and therefore assumed "oh" was protectable.  Specifically, the Court found there was no substantial similarity.

First, the "oh" was not quantitatively significant in either the composition or sound recording thereof. Second, the court found that the qualitative significance of "oh" in plaintiff's work was insufficient.  "Oh" was not the heart of the composition, having appeared only once and being a common word.  As to the recording, "oh" only appeared at the beginning, and was a replaceable term; indeed, "oh" could have been removed completely without significantly changing the essence of the recording.  That Jay-Z used the "oh" more than 40 times did not change the analysis, because what is relevant is the qualitative and quantitative significance of the copied portion in relation to the plaintiff’s work as a whole (not the significance to the defendant's work).

Judge Finds Liability In Shakira Infringement Trial

Mayimba Music, Inc. v. Sony Corp. of Am. et al., No. 1:12-cv-01094-AKH (SDNY filed 08/19/14) [Doc. 104].

This is an infringement action alleging that a Shakira song infringes the copyright in a musical composition.  After a bench trial, the Court found: (a) that plaintiff, as exclusive licensee, had standing; (b) there was no proof of laches; (c) the Shakira song was an unlawful copy of plaintiff's song; and (d) the US distributors were liable for infringement.  The next stage was determining damages, or alternatively a permanent infringement.

Suit Against Kanye West Dismissed On "De Minimis" Grounds

Steward v. West, No. CV 13-02449 (C.D. Cal. Aug. 14, 2014).

In this copyright infringement action against Kanye West et al concerning a sample, the Court granted defendants' Rule 12(c) motion for judgment on the pleadings.  On the motion, the Court considered the sound recordings and held that, while plaintiff's sound recordings were sufficiently original to be protectable, defendants' copying was de minimis.  "The result of these distortions and the short length of the samples is that the average audience would not recognize plaintiffs’ Song in any of Defendants’ songs without actively searching for it. In the Ninth Circuit, digital sampling is de minimis when 'the average audience would not recognize the appropriation.'"  Accordingly, the copyright infringement (and dependent contributory liability claims) were dismissed.

Country Music Infringement Claim Survives Dismissal

Bowen v. Paisley et al., No. 3:13-cv-0414 (M.D. Tenn. filed Dec. 3, 2013) [Doc. 58]

Plaintiff alleged that the defendants, including popular country music singers Brad Paisley and Carrie
Underwood, violated her copyright interests in the song “Remind Me,” a song that plaintiff
copyrighted and recorded.  Defendants moved to dismiss.  The Court denied defendant's motion to dismiss for failure to state a claim, finding that under the Iqbal standard, plaintiff had plausibly shown that, taken in combination, her lyrics and associated melodies, intonations, and usage could be sufficiently original to constitute protectable material, and that based on the Court's own comparison of the two works that defendants' hooks which incorporate that potentially distinctive combination of elements, are “substantially similar”.

Madonna's "Vogue" Does Not Infringe Horn-Hit

VMG Salsoul, LLC v. Madonna Louise Ciccone, et al., No. 12-cv-05967 (C.D. Cal. filed 11/18/2013) [Doc. 116].

Plaintiff alleges copyright infringement for the appropriation of a single horn stab (“Horn Hit”) from Plaintiff’s work, Love Break. The Horn Hit is a single chord that is played eleven times in Defendants’ work, Vogue. The Court found that neither the chord nor the Horn Hit sound sufficiently original to merit copyright protection. Even if the alleged appropriation was subject to copyright protection, the Court found that any copying was de minimis.  Accordingly, defendants were granted summary judgment.

The Court recognized that while a valid certificate of registration with the copyright office entitles Plaintiff to
a presumption of originality, Defendants may overcome this presumption by demonstrating that the Horn Hit is not original.  The Court then concluded that, as a matter of law, the Horn Hit is not sufficiently original to merit copyright protection.  "The Horn Hit is not a component of the 'hook' in Plaintiff’s Love Break nor is it accompanied by a lyric. As a result, the Court finds that this single chord is not sufficiently original to merit copyright protection".

The Court further found that even if the alleged appropriation was subject to copyright protection, Defendants’ use was de minimis.  "Having listened to the sound recordings of Chicago Bus Stop, Love Break, and Vogue, the Court finds that no reasonable audience would find the sampled portions qualitatively or quantitatively significant in relation to the infringing work, nor would they recognize the appropriation. The Court finds that any sampling of the Horn Hit was de minimis or trivial."  Lastly, there was also evidence of independent creation.