"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.

"We Shall Overcome" Putative Class Action Survives Dismissal

We Shall Overcome Foundation v. Richmond Org., No. 16-2725 (S.D.N.Y. Nov. 21, 2016).

In a putative class action challenging the Defendants' copyright in the song "We Shall Overcome" on the basis that the lyrics of the first verse is virtually indistinguishable from a song in the public domain, the Court denied the defendants' Rule 12(b)(6) motion to dismiss the copyright claims, but did dismiss the state-law claims as pre-empted.  The Court found that the plaintiffs had plausibly alleged: (1) that the first verse in the copyrighted work “We Shall Overcome” lacks originality (thereby rebutting the certificate of registration); (2) fraud on the copyright office by deliberately omitting from their application for a copyright in a derivative work all reference to the public domain spiritual or the publications of “I Shall Overcome” and “We Shall Overcome” as antecedents to the Song; and (3) divestment of copyright protection, under the 1909 Act, by publishing the work without including notice of copyright.  However, the state-law claims were dismissed as pre-empted (Those claims are for money had and received, violation of New York General Business Law § 349, breach of contract, and rescission for failure of consideration).

Court Explains Prior Dismissal of Copyright Claim Concerning Beyonce's LEMONADE Trailer

Fulkes v. Knowles-Carter et al., No. 16-4278 (S.D.N.Y. Sep. 12, 2016).

Having previously granted the motion to dismiss for failure to state a claim for copyright infringement by "bottom-line order," the Court explained the reasons for its ruling.  In this case, the plaintiff alleged that defendants' distribution of a film trailer and the film itself promoting the release of Beyonce's musical album "Lemonade" infringed plaintiff's copyright in the short film "Palinoia." 

On a Rule 12 motion, the Court noted that the works themselves control, not Plaintiff's descriptions in the pleadings, and decided that the works were not substantially similar as a matter of law.  In short, "Plaintiff's alleged similarities consist almost entirely of clearly defined ideas not original to plaintiff and of stock elements with which even a casual observer would be familiar. Moreover, to the very limited extent that there are even any superficial similarities, these are overwhelmed by the works' vastly different creative choices and overall aesthetic feel. "  The Court then went through each of the 9 allegedly similar scenes.

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. 

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.

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.