"We Shall Overcome" Verse Not Subject To Copyright Protection

We Shall Overcome Foundation v. The Richmond Org., No. 16-cv-2725 (S.D.N.Y. Sep. 2017) (Cote, J.).

In a putative class action challenging the validity of the defendants' copyright in the folk-song "We Shall Overcome," the Court granted plaintiffs partial summary judgment finding that the lyrics and melody of the first verse (repeated as the 5th verse) of the song are not sufficiently original to qualify for copyright registration as a derivative work.  After going through the history of various publications and registrations of the song, the Court held that the defendants could not rely upon their copyright registration's presumption of validity because the defendants had submitted sufficient evidence to rebut the presumption: "They have shown that the Defendants’ 1960 and 1963 applications for a copyright in the Song were significantly flawed."

The next questions was whether the changes to the most well-known verse of the Song, Verse 1/5, embody the originality required for protection by the Copyright Act.  A version of the song was in the public domain, so the issue was whether the changes claimed by the defendants were sufficient to qualify as a a protectable derivative work.  The Court held that "the Plaintiffs have shown that the melody and lyrics of Verse 1/5 of the Song are not sufficiently original to qualify as a derivative work entitled to a copyright.  As a matter of law, the alterations from the PSI Version are too trivial. A person listening to Verse 1/5 of the Song would be hearing the same old song reflected in the published PSI Version with only minor, trivial changes of the kind that any skilled musician would feel free to make. ... More specifically, the changes of “will” to “shall” and “down” to “deep” and the melodic differences in the opening measures and the seventh measure, do not create a distinguishable variation. These differences represent “variations of the piece that are standard fare in the music trade by any competent musician.”  In other words, changing "will" to "shall" was not sufficiently original to warrant copyright protection.

The Court did, however, deny the motion for summary judgment on the issues of the authorship and divestment (by publication), and fraud on the copyright office; and partially granted a Daubert motion precluding expert testimony.

Country Stars Beat Copyright Infringement Case Over "Remind Me" Hook

Bowen v. Paisley, No, 13-414 (M.D. Tenn. Aug. 25 2016).

Brad Paisley and Carrie Underwood did not infringe plaintiff's song, holds the Court in granting Defendants summary judgment in a case brought by a country music songwriter.  The two songs at issue were called "Remind Me," and specifically their allegedly similar "hooks."  The Court held that the plaintiff had sufficiently established originality and access, but that she has not presented sufficient evidence of substantial similarity between the two works to survive summary judgment.  As to substantial similarity, in sum, plaintiff's expert identified the use of some similar techniques and musical devices, but she did not show that the two Works employ these techniques and devices in the same manner.  Further, these technical similarities were overwhelmed by the broader dissimilarities in context, structure, mood, melody, and harmony—the very features a lay listener would be likely to identify. 

In this case, however, the plaintiff does not allege literal copying of anything except the lyric phrases “remind me” and “baby, remind me,” and she has not shown that the defendants’ use of some of the same musical techniques and melodic features was similar enough to her use of the same techniques and features to render the expressions of the hook phrases in the two Works substantially similar. In short, the court finds that no reasonable juror could conclude, based on the undisputed evidence, that the songs overall, or the “hook” phrases specifically, are substantially similar. 

Grooveshark And Its Officers Liable For Copyright Infringment Based On Direct Uploads By Officers And Employees

UMG Recording, Inc. v. Escape Media Group, Inc. No. 1:11-cv-08407-TPG (S.D.N.Y. filed Sep. 29, 2014) [Doc. 100].

This case involved "Grooveshark" and the direct upload of plaintiffs' copyright music by defendant's officers and employees.  The Court granted plaintifss' motion for spoliation sanctions, and granted plaintiffs' summary judgment on nearly all of their claims.  As to spoliation sanctions, the Court found that defendants acted with a culpable state of mind when they deleted user upload information and relevant source code.  Based on the spoliation, the Court found that an individual defendant directly infringed plaintiffs' copyright recordings; however, the Court did not agree with plaintiffs' request that it find 10,000 instances of infringement and instead found that plaintiffs were entitled to judgment as a matter of law that that defendant illegally uploaded a small percentage (144) of the recordings.  Similarly, the Court found that the other employees uploaded a much smaller percentage  of additional files than requested by plaintiffs.

Turning to the summary judgment motion, the court first found that a certain expert report was admissible.  The Court then addressed defendants' affirmative defenses, and held that the claims were not barred by the statute of limitations, and that defendants' could not set forth a claim for equitable estoppel (or laches or waiver).  On plaintiffs' copyright claims, the Court found that plaintiffs established that defendants illegally uploaded 5,977 sound recordings (plaintiffs had requested a much higher number).  Accordingly, defendants were directly liable for infringement of plaintiffs' distribution, reproduction and public performance rights.  Further, Escape was liable for vicarious and inducement infringement because it had the ability to control its employee's infringing activity and instructed its employees to upload as many files as possible to Grooveshark as a condition of their employment.  Escape also materially contributed to the infringing employee uploads, and the Court granted plaintiffs summary judgment on their claim for contributory infringement.  The corporate officers were also liable., jointly and severally with the company.

Infringement Action Against Lady Gaga Dismissed; No Substantial Similarity

Francescatti v. Germanotta; No. 11-cv-520 (N.D. Ill. June 17, 2014).

The Court granted defendant Lady Gaga's motion to dimiss the copyright infringement case over Gaga's song "Judas", even though the Court found that defendants had access to plaintiff's song "Juda," because no reasonable trier of fact could find that the songs are substantially similar.  With respect to access, the Court found that based on the nature and timing of a collaboration between Gaga and other defendants, a reasonable juror could find that there exists a nexus -- via a channel of communication -- between the parties and that therefore the defendants had an opportunity to hear the plaintiff's songs.  Accordingly, defendants were not entitled to summary judgment on that ground.  However, the Court found no substantial similarity.  First, the Court undertook an extensive analysis of whether expert testimony was necessary, or permissible, to determine similarity under the ordinary observer test.  The Court found that expert testimony was warranted because the songs are sufficiently complex, especially given the use of computer technology.  Second, the Court undertook the extrinsic-intrinsic test and held that the songs are substantially similar.  The songs do not share enough unique features to give rise to a breach of the duty not to copy another's work.

9th Cir. Affirms Public Performance Liability Against Restaurant

Range Road Music, Inc. v. East Coast Foods, Inc., No. 10-55691 (9th Cir. filed Jan. 12, 2012).

The 9th Circuit affirmed the district court's grant of summary judgment and legal fees in favor of plaintiffs (ASCAP) against defendant (restaurant/lounge). Defendant was vicariously liable for copyright infringement related to the public performance, both by a live band and by a CD, of copyrighted songs. Plaintiff's proof was an investigative report by a visitor to the premises. The report did not need to be by a certified expert because "identifying popular songs does not require 'scientific, technical, or other specialized knowledge'.” The Court rejected defendant's argument that a showing of substantial similarity was required for a public performance case. The Court properly awarded attorney's fees to Plaintiff.