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. 

Chorus In Bieber & Usher Song Similar Enough To Chorus In Plaintiff's Song To State Copyright Claim

Copeland v. Bieber, No. 14-1427 (4th Cir. June 18, 2015)

The Fourt Circuit vacated the trial Court's dimissal of Plaintiff's claim against Justin Bieber and other defendants alleging that three recorded songs infringe upon plaintiff's copyright in an earlier song of the same name.  Applying the "intrinsic similarity" test -- whether the songs at issue, assessed from the perspective of the intended audience (the general public), and taking into account their "total concept and feel" -- the appellate court found on de novo review, after listening to both songs start to finish, that plaintiff stated a claim.  First, the court found that the three songs (a demo, album version, and remix) were "the same" (not just substantially similar) under the unscientific intrisic standard.  Second, the court compared the three songs to plaintiff's song.  The appellate court disagreed with the lower court's finding that there was a different overall "aesthetic appeal," finding too much of a focus on the mood and tone of the song rather than the similarities between the most imporant "element" of the songs, their choruses.  The songs are different genres, but that is not enough (the Court gave the example of the Beatles' songbook being turned into an unlicensed reggae or heavy metal version).  Further, the songs were in may respects dissimilar; numerically, the points of dissimilarity may have exceeded the points of similarity.  "But what that analysis fails to account for...is the relative importances of these differences as compared to what the songs reasonably could be heard to have in common: their choruses....courts routinely permit a finding of substantial similarity where the works share some espeically significant sequence of notes or lyrics."  Continguing, "we think it is clear that when it comes to popular music, a song's chorus may be the kind of key sequence that can give rise to intrinsic similarity, even when works differ in other respects."  In other words, "the hook" is key.  And whether a member of the general public could experience these songs primarily through their choruses and thus find them substantially similar is a close enough question that it cannot be disposed of as a matter of law and should instead by decided by a jury.

[Author's note: missed this case earlier in the year].

Pro Se Plaintiff's Taylor Swift Case Dismissed At In Forma Pauperis Stage

Braham v. Sony/ATV Music Publishing et al., 15-cv-8422 (C.D. Cal. Nov. 10, 2015).

A magistrate judge denied the pro se plaintiff's request to proceed in forma pauperis on the basis that he failed to state a claim against Taylor Swift and her label/publisher for alleged copyright infringement.  According to the Complaint, defendants used a 22 word phrase from Plaintiff's song "Haters gone hate".  Without ident ifying the specific phrase, Plaintiff alleges that “92% of the lyrics” of “Shake It Off” come from his song, that his “song phrase string is used over 70+ times,” and that Taylor Swift would not have written “Shake It Off” had he not written “Haters gone hate.”  The Court found that the plaintiff failed to adequately allege copying under Rule 8.  The Court further noted that if the plaintiff chose to refile an amended complaint, it had significant concerns that he lacked a claim based solely on the lyrics.  Moreover, the plaintiff would need to allege that his lyrics are original.

Beyonce Dodges Copyright Claim In "XO" v "XOXO" Case

Lane v. Carter et al., No. 14-cv-6798 (SDNY filed 10/21/15) [Doc. 51].

Plaintiff's claim, alleging that he gave a copy of his song XOXO to one of Beyonce's background singers and that Beyonce infringed the song when she created the song XO, was dismissed pursuant to Rule 12(b)(6) and 8(a).  First, the Court found that although Plaintiff holds a copyright registration for the lyrics to XOXO, the registration excluded rights to the music which was the sole basis of the copyright claim.  Moreover, even though Plaintiff alleged that he was an exclusive licensee, he did not allege that hte licensor had a valdily registred copyright.  Accordingly, the claim was dismissed for lack of standing. 

Even though that was potentially curable on an amended pleading, the Court found then considered whether a copyright infringement claim was otherwise substantively viable.  The Court then underwent a "substantial similarity" analysis of: (1) "the beat" and the songs to determine whether the similarities between the two songs concern copyrightable parts of XOXO and whether a reasonable and properly instructed jury could conclude that there is substantial similarity.  The Court found that the use in both songs of "a common four-bar phrase" would not establish substantial similarity between them.  Additionally, comparing the songs holistically, the Court found that no reasonable jury could find the lyrics of XOXO substantially similar to XO.  Aside from thef act that both songs' lyrics use the letters X and O, "there is virtually nothing common to the two song's lyrics" (emphasis in original).  Moreover, the lryics of the two songs have no word in common, save ubiquitous words like "I," "you," your," "is," and "baby."  The themes were also different.  Next, as to the music, the Court listened to the two song and found litte, if anything, in common.  The Court, accordingly, dismissed the complaint with prejudice.

Kanye, Jay-Z and Others Avoid Copyright Infringement Claim Because Two "Made In America" Songs Not Substantially Similar

McDonald v. West et al., No. 14-cv-8794 (S.D.N.Y. Sep. 30, 2015) [Doc. 42].

In case about two songs both called "Made In America," the Court dismissed the Complaint against Kanye West, Jay-Z and others alleging copyright infringement of the plaintiff's song, pursuant to Rule 12(b)(6).  First, the Court found that even though the two songs shared the same title, the song title "Made In America" was not copyrightable.  "It is too brief, common, and unoriginal to create any exclusive right."  Second, the Court analyzed similarity between the lyrics in the chorus of each song, along with alleged musical similarity.  However, the Court found that plaintiff did not plausibly plead substantial similarity.  The Court then turned to a "holistic" comparison of the two songs, because even if the indvidual elements that make up Plaintiff's songs are uncopyrightable, they still may represent a protected selection and arrangement of unprotectable elements.  The Court found that no reasonable jury could find the two songs similar, lyrically or musically.  The differences were major.  "Where any reasonable juror would conclude - as here - that the differences are many, and what similarities exist are based on unprotectable elements, the two works are not substantially similar as a matter of law."  Accordingly, the Court dismissed the complaint.

Happy Birthday Lyrics Not Owned By Warner

Marya v Warner/Chappell, No. 13-cv-4460 (C.D. Cal. filed 9/22/14) [Doc. 244].

After collecting royalties for years, a Court found that Warner/Chappell lacked copyright ownership in the lyrics to the world's most famous song, "Happy Birthday."  The Court found that because the current publisher's alleged predecessor "never acquired the rights to the Happy Birthday lyrics, Defendants, as Summy Co.’s purported successors-in-interest, do not own a valid copyright in the Happy Birthday lyrics."

The melody of the song is the same as one called "Good Morning," which was published in a songbook and subject to copyright protection under the 1909 Act until 1949.  Both parties agree the melody entered the public domain years ago.  The origins of the "Happy Birthday" lyrics is less clear, as those lyrics did not appear in the same songbook as "Good Morning."  Subsequent publications of the lyrics noted that the tuen for "Happy Birthday" was the same as "Good Morning," but did not credit an author of the lyrics.  The decision then explains the alleged chain of title to the lyrics of "Happy Birthday."

Plaintiffs, bringing a declaratory judgment action, alleged that Defendants do not own the copyright in the lyrics to Happy Birthday, and thus should not have been collecting royalties for licensing the song (and should be compelled to return collected royalties).  The Court was facing cross-motions for summary judgment.

First, the Court found that a 1935 registration was not subject to a presumption of validity.  There was a facial and material defect in the registration, nameley that it did not state that the lyrics were being copyrighted.  Thus, there was no presumption that the lyrics were registered.

Next, the Court examined: who wrote the lyrics to Happy Birthday?  The Court found there was conflicting evidence, and therefore a material question of fact for trial.

Then, the Court examined whether, whoever wrote the lyrics, any copyright in the work was divested by publication before the 1935 registration?  Under the 1909 Act, general publication without notice of copyright divested the author of common law and federal copyright protection.  Again, the Court found a question of material fact whether the alleged authors granted their publisher the right to generally publish the song.

Next, the Court examined whether the alleged author abandoned her interest.  Although the plaintiffs had found an article where the alleged author said that she had resigned herserlf to the fact that the song was the publics, the Court found questions of fact on this issue again a ground to deny summary judgment.

Then, the Court examined the alleged transfers in interest of the song lyrics, and three old agreements between the alleged authors and their publisher.  The court found that Defendants had no evidence a transfer occurred, whether by oral statement, by writing, or by conduct. "Defendants ask us to find that the Hill sisters eventually gave Summy Co. the rights in the lyrics to exploit and protect, but this assertion has no support in the record. The Hill sisters gave Summy Co. the rights to the melody, and the rights to piano arrangements based on the melody, but never any rights to th e lyrics. Defendants’ speculation that the pleadings in the Hill-Summy lawsuit somehow show that the Second Agreement involved a transfer of rights in the lyrics is implau sible and unreasonable. Defendants’ suggestion that the Third Agreement effected such a transfer is circular and fares no better. As far as the record is concerned, even if the Hill sisters still held common law rights by the time of the Second or Third Agreement, they di d not give those rights to Summy Co."

Article re: Musical Lyrics Copyright Infringement Cases

Nicholas Tsui, How Similar Is Too Similar: The Predictability of Court Decisions in Musical Lyrics Copyright Cases, 62 J. Copyright Soc'y 307 (2015).

The author finds that despite the various ways in which different courts have interpreted the "substantial similarity" test in copyright infringement cases involving lyrics, the similiarity judgments in courts throughout the country were actually quite consistenent.  The author states that he was able to accurately predict the court's outcome over 90% of the time using a simple similarity metric that counted overlapping words, phrases and lines.  "My results indicate that courts' decisions on substantial similarity follow a relatively simple pattern analysis that while fact-specific was not so nuanced as to be unpredictable."

Copyright Claim Dismissed Against Usher Because No Substantial Similarity

Edwards et al. v Usher Raymond IV et al., No. 1:13-cv-07985-DLC (S.D.N.Y. filed 05/23/14) [Doc. 36].

Plaintiffs alleged that a song recorded and published by defendants, including Usher, willfully copied the plaintiffs' original musical composition.  On defendants' Fed. R. Civ. P. 12(b)(6) motion to dismiss, the Court found that plaintiffs failed to state a claim for copyright infringement because the two songs were not substantially similar as a matter of law.  Accordingly, the Court dismissed the sole copyright infringement claim, and declined to exercise supplemental jurisdiction over the state law claim for breach of contract.

First, the Court found that the phrase "caught up," which is the title of both songs, is not eligible for copyright protection because it is a common phrase.  Second, the Court found that lyrics from the two songs expressing the ideas in question were not substantially similar.  Third, the Court ignored bare legal conclusions in the complaint that the songs are substantially similar.  Lastly, the Court also took a "holistic" approach, and determined that the two songs' music and lyrics, considered as a whole, confirmed a lack of substantial similarity.

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”.

NMPA Take Down Notices Sent To Lyric Sites

Billboard reports that the National Music Publishers Association ("NMPA") has sent take-down notices to 50 commercial lyric sites operating without licenses.  The article highlights the site RapGenius.  The article further reports that David Israelite, Chief Executive of the NMPA, said that the take-down notices are a precursor to the filing of lawsuits against the unlicensed sites for copyright infringement.

3d Cir. Affirms Dismissal of Author's Suit Against 50 Cent

Winstead v. Jackson, No. 11-3771 (3d Cir. opinion filed Jan. 11, 2013).

The Third Circuit affirmed an order of the District Court dismissing the amended complaint as to all defendants.  In this copyright case, the parties respective works at issue include Plaintiff's book, The Preacher’s Son – But the Streets Turned Me into a Gangster, and defendant Curtis Jackson's (50 Cent's) Before I Self-Destruct album/CD, featuring songs and lyrics written by Jackson; and his companion film of the same name, which Jackson wrote, starred in, and directed.  Jackson and the record companies moved to dismiss the amended complaint pursuant to Fed. R. Civ. Pro. 12(b)(6), arguing that the copyright infringement claim failed because Plaintiff's book and Jackson's album/CD and film are not substantially similar as a matter of law, and that Plaintiff's state law claims are preempted by the Copyright Act because they are premised on the same underlying facts.  The Circuit Court affirmed dismissal, finding inter alia:

We agree with the District Court that a lay observer would not believe that Jackson's album/CD and film copied protectable aspects of [Plaintiff]'s book.
***
There was a failure to state an actionable claim for copyright infringement here because, although [Plaintiff]'s book and Jackson's works share similar themes and setting, the story of an angry and wronged protagonist who turns to a life of violence and crime has long been a part of the public domain.

***
In addition, [Plaintiff]'s book and Jackson's works are different with respect to character, plot, mood, and sequence of events.

***

[Plaintiff] contends that direct phrases from his book appear in Jackson's film. ... The average person reading or listening to these phrases in the context of an overall story or song would not regard them as unique and protectable. ... Moreover, words and short phrases do not enjoy copyright protection.

Rap Lyrics Properly Admitted At Criminal Trial

People v. Avery Green, NYLJ 1202544434567 (2d Dept Feb. 28, 2012).

After hearing a recording of a rap performance proffered by the People, the County Court admitted into evidence a transcript of lyrics from that performance, which had been written by the defendant or members of the gang with which the defendant was affiliated, and described crimes that the gang members committed or were going to commit. The Appellate Division held that admission of this evidence did not warrant reversal.

To the extent that the defendant argues that the admission into evidence of the law enforcement witnesses' testimony was "prejudicial," any such prejudice must be balanced against the relevance of the testimony. The lyrics themselves were relevant to the issue of the defendant's consciousness of guilt (see People v. Wallace, 59 AD3d 1069, 1070), and both the lyrics and the testimony of the law enforcement witnesses concerning their understanding of the meaning of those lyrics were relevant to defendant's knowledge and intent (see United States v. Foster, 939 F2d 445, 455). Similarly, the testimony concerning the structure of the gang to which the defendant belonged, as well as his place in the gang hierarchy, was relevant to the context of the lyrics composed by the defendant and those found in his bedroom, and explained the relationship between the defendant and his coconspirators, along with their motives and intent (see People v. Cherry, 46 AD3d 1234, 1237; People v. Faccio, 33 AD3d 1041, 1042). Under the circumstances of this case, the relevance of this challenged evidence more than outweighed the potential prejudice to the defendant and, hence, the evidence was properly admitted over any objection based on prejudice (see People v. Russo, 81 AD3d 666, 667-668)

Lyricist's Suit Against Video Game Developer Survives

Greer v. Electronic Arts, Inc., No. 10-cv-3601 (N.D. Cal. order filed Feb. 1, 2012) [Doc. 96].

In this copyright infringement action, plaintiff contended that defendant improperly used a
sound recording and the lyrics of a song by incorporating them into a widely-distributed videogame. Defendant moved for summary judgment on three independent grounds. Although two of defendant’s three arguments presented close calls, triable issues of fact existed that precluded summary judgment, and the motion was denied.

Facts: Plaintiff was a member of a band that registered a copyright relating to an album the band had recorded, which included the song at issue. Plaintiff subsequently filed a correction to the registration to clarify that he claimed sole copyright to the lyrics of the song. One of Plaintiff's band mates was employed by a video game developer, and was working to create a soundtrack for a video game that was being was developed. The band mate chose to include the song as part of the soundtrack for the game. The band mate and two other band members submitted declarations stating that all of the band members executed a written license agreement giving the developer the right to use the song in the game in exchange for one dollar and acknowledgement in the on-screen credits of the game. No signed copy of such a license agreement was located, and Plaintiff denied ever being asked to sign a license agreement, and alleges that he did not become aware that the song had been incorporated into the game until 2009.

Discussion: First, the court addressed issues with the registration of the album containing the song as a "PA" (performing arts), in contrast to registration on a form "SR" (sound recording). While Form SR may be used to register both the underlying composition and the
sound recording if separate registrations are not necessary or desired, nothing on Form PA permits it to be used to register a sound recording. Thus, defendant was correct that the band’s recorded performance of the song that was used in the game was never registered. That fact, however, wasnot fatal to plaintiff's claims, because plaintiff's complaint specifically identified by registration number the copyrighted work that plaintiff alleged had been unlawfully copied. While the complaint also repeatedly asserted the erroneous legal conclusion that the registration was of the sound recording (as opposed to the underlying musical composition) the facts alleged were sufficient to state a claim for infringement of the musical composition. There was no dispute that the band's performance of the song incorporated in the game was a performance of the underlying composition.

Second, the Court analyzed the competing arguments about the existence of a license. The Court concluded that the record did not permit a conclusion on summary judgment that the license agreement was ever signed, either in the unsigned form of the document defendant hadsubmitted, or in any form. While the recollections on both sides were vague, they were in direct conflict.

Third, the Court analyzed the defense of laches. Defendant made a compelling showing that this was a case in which laches may ultimately apply to bar at least some portion of plaintiff's claims. Among other things, the evidentiary prejudice was manifest in the witnesses’ fading memories and the uncertainty in the documentary record as to whether the license agreement was ever signed. The critical question, however, was when plaintiff knew or should have known that the song had been incorporated into the game. Plaintiff's testimony that he did not learn of the song’s use in the game until 2009 was sufficient to create a triable issue of fact as to his actual knowledge. If the trier of fact accepts the testimony that the possibility of using the song in the game was discussed at length prior to plaintiff's departure from the band, he more likely can be held to a duty of some inquiry, even assuming he never saw or signed the license agreement. Defendant had not shown, however, that undisputed facts compel a finding that plaintiff was on constructive notice as early as 1995, or at any particular time thereafter. Finally, defendant had not established that laches necessarily would bar plaintiff from seeking injunctive relief against any ongoing infringement, even assuming it ultimately bars some or all of his claims for past damages.

Spanish Language Adapter Loses Suit Against Coke

Vergara Hermosilla v. Coca-Cola Co., No. 10-21418 (S.D. Fla. Feb. 23, 2011). Decision here.

Plaintiff was hired by Coca Cola to adapt a song into Spanish. Plaintiff requested an "adapter's share." During a telephone call with defendant, Plaintiff agreed to relinquish any copyright interest in the work. In an email later that day, Plaintiff wrote "For the adaptation, you may consider it a work for hire with no economic compensation to that respect. I believe what's legal is a dollar."

The Court granted Defendant's motion for summary judgment. Relying on section 204 of the Copyright Act, the Court held that Plaintiff's copyright interest -- the adapted lyrics -- was conveyed by a signed writing (the email). An irrevocable agreement was reached, so that later communications between the parties concerning a written contract that differed from the parties' agreement did not alter the parties' actual agreement. "Therefore, because Coca Cola cannot be sued based on a copyright interest it owns, Coca Cola is entitled to summary judgment on all counts."


Rap Lyric Leads To Conviction/Prison

Georgia rapper Rico Todriquez Wright, age 25, was sentenced earlier this week to 20 years behind bars for aggravated assault after indirectly confessing to a 2006 shooting via a rap song.

The victim of a shooting two years ago, Chad Blue, informed authorities of a distant friendship with the rapper that resulted in a gunshot after Wright chased him and let off multiple bullets to his thigh and groin while an entourage surrounded the scene.

"I heard one of the men tell Rico, 'Go ahead and shoot him,'" Blue previsouly told jurors. "When he raised his gun, I knew I had to run. But I knew if I ran a straight line, I was dead. So I started weaving, running between houses, trying to avoid the bullets."

Despite Blue's testimony, it was the lyric "Chad Blue knows how I shoot," which secured a prison term for the rapper.

[Article with comments.]

'From Law to Lyrics: Skills That Transcend'

Emeka Onyejekwe aka Mekka Don, "From Law to Lyrics: Skills that Transcend", The Young Lawyer, vol. 13, no. 2 (ABA, Nov. 2008)

It seems like writing briefs and writing [hip-hop] lyrics would be completely different tasks; however, recently I realized that the two are more similar than one would think. The main premises are the same: (1) know your audience, (2) be persuasive, and (3) be able to support your claims.

Dylan Quoted By Supreme Court

Sprint Communications Co. v. APCC Services, Inc., No. 07-552, 554 U.S. ___ (decided June 23, 2008) (C.J. Roberts, dissenting):

The absence of any right to the substantive recovery means that respondents cannot benefit from the judgment they seek and thus lack Article III standing. “When you got nothing, you
got nothing to lose.” Bob Dylan, Like A Rolling Stone, on Highway 61 Revisited (Columbia Records 1965).

(p. 36 of this .pdf).