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. 

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.

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."

Tejano Music Infringement Claim Fails Because No Access And Not Enough Similarity

Guzman v. Hacienda Records & Recording Studio, Inc., No. 6:12-CV-42, 2014 BL 344493 (S.D. Tex. Dec. 09, 2014).

After a bench trial, the Court dismissed plaintiff's copyright infringement claim because the alleged infringers did not have access to plaintiff's work nor were the two works strikingly similar.  This case is about two Tejano songs -- a hugely popular style of music in Corpus Christi from the 1970s through the 1990s, that is a a fusion of the Mexican and German influences in Texas. Although the Court found that substantial similarity existed between the songs, the Court declined to find the much higher standard of striking similarity, which is necessary for a finding of factual copying without any proof of access.  The Court also found that the evidence did not support a finding that defendants had access to plaintiff's song. The Court concluded that it was purely speculative that anyone associated with defendant heard plaintiff's song on the radio on the occasions when it was actually played, or ever heard it performed live.  "Because [plaintiff] has not shown a reasonable possibility that Defendants had access to his song, he cannot show that they copied it and his copyright infringement claim fails".

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).

Tim McGraw Didn't Have Access To Plaintiff's Demo Tape; Summary Judgment Affirmed In Defendants' Favor

Martinez v. McGraw et al., No. 13-5796 (6th Cir. filed Sep. 15, 2014).

The 6th Circuit affirmed summary judgment in favor of defendants in a copyright-infringement action wherein Plaintiff alleged that Defendants infringed his musical composition Anytime, Anywhere
Amanda with the musical composition Everywhere by country-artist Tim McGraw.  On appeal, the 6th Circuit found that the District Court applied the correct standard -- that defendant had an opportunity to access Plaintiff's song -- and that Plaintiff could not meet that standard.  "There is no dispute that Anytime was never published or distributed, never received radio play, is not available on iTunes, has not been performed by third parties, and that Martinez performed the song only in South Texas. Defendants’ only possible access would have been through the demo tape Martinez gave to Tomac."  The record, though, was devoid of any evidence that the demo tape had been passed along.  "Martinez’s theories of access through third-party intermediaries fall short. The district court properly determined that Martinez presented only 'attenuated chains of hypothetical transmittals' in support of his claim that Defendants heard or had a reasonable opportunity to hear Anytime. See Patry on Copyright § 9:29. The chain of access vanishes after Tomac gave the lone demo tape to Bartley in the fall of 1996, and the hypothetical transmittals fail to support
a reasonable inference that any Defendant or associate of any Defendant received a copy of Anytime, much less that Wiseman or Reid, the alleged infringers, heard or had a reasonable opportunity to hear Anytime and copied it before they co-wrote Everywhere in November 1996."  Lastly, there was no error because no evidence was presented that protectible elements of the two works are substantially similar.

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.

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.

Blacked Eyed Peas Not Liable For Infringement In Absence Of Access And Lack Of Similarity

Pringle v. Adams, No. 12-55998 (9th Cir. Feb. 21, 2014).

The 9th Circuit affirmed summary judgment for the defendants -- the Black Eyed Peas and related parties -- in a copyright infringement case.  The Court found: "The evidence in support of Plaintiff, however, raises only the barest possibility that Defendants had access to [the song], and Plaintiff does not argue that there is a 'striking similarity' between [the song] and Defendants’ allegedly infringing work."  The 9th Circuit also affirmed sanctions against plaintiff for violating a court order regarding service of process on one of the defendants.

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”.

Beastie Boys Avoid Several Copyright Claims In Sampling Case

TufAmerica, Inc. v. Diamond et al., No. 12-cv-3529-AJN (S.D.N.Y. filed Sep. 10, 2013).

Plaintiff brought a copyright infringement action against the Beastie Boys alleging unlawful sampling of 6 pieces of plaintiff's music in five Beastie Boys songs that appear on two Beastie Boys albums (Paul's Boutique and Licensed to Ill).  Defendants moved to dismiss for failure to state a claim under Rule 12(b)(6).

The Court agreed with plaintiff that the standard for determining substantial similarity was "fragmented literal similarity", rather than "ordinary observer" standard.  Under the "fragmented literal similarity" standard, the question was whether the copying went to trivial or substantive elements.  Thus, the "real question" for the Court was whether Plaintiff had alleged that each sample was "quantitatively and qualitatively important to the original work such that the fragmented similarity becomes sufficiently substantial for the use to become an infringement."  Under the quantitative analysis, the concept of de minimis copying is relevant.  Also, the analysis is of the original song -- not of the use in the allegedly infringing song; therefore, the Court was not persuaded by Plaintiff's allegation in its original complaint that the samples were concealed to a casual listener of the Beastie Boys' songs.  Thus, the Court then went on a song-by-song analysis, which included a discussion of whether the sampled portion was even copyrightable material, and dismissed four of the claims based on 4 of the samples.  Lastly, under the statute of limitations, the Court also limited the surviving claims to infringements occurring after May 2009 (3 years before the suit was filed).

7th Cir. Affirms Dismissal of "Nikita"/"Natasha" Suit Against Elton John

Hobbs v. Elton John, No. 12-3652 (7th Cir. July 17, 2013).

Plaintiff composed a song entitled “Natasha” that was inspired by a brief love affair he had with a Russian waitress.  Plaintiff tried to publish  his song, but was unsuccessful. A few years later, Elton John and Bernie Taupin released a song entitled “Nikita” through a publishing company to which Plaintiff had sent a copy of “Natasha.” Believing that “Nikita” was based upon “Natasha,” Plaintiff eventually demanded compensation
from John and Taupin, and ultimately filed suit asserting a copyright infringement claim and two related state law claims. The defendants moved to dismiss Plaintiff's complaint for failure to state a claim, and the district court granted the defendants’ motion.  The 7th Circuit affirmed.

The Court held that Plaintiff failed to state a claim for copyright infringement because, even when the allegedly similar elements between the songs are considered in combination, the songs are not substantially similar.  Defendants conceded that Plaintiff owned a valid copyright in the song and that Defendants had access to it.  "Thus, the defendants can only prevail on their motion to dismiss if 'Natasha' and 'Nikita'
are not 'substantially similar' as a matter of law. That is, if as a matter of law 'Natasha' and 'Nikita' do not 'share enough unique features to give rise to a breach of the duty not to copy another’s work'."  The Court found that Plaintiff's argument "flounders on two well-established principles of copyright law."  First, that the Copyright Act does not protect general ideas, but only the particular expression of an idea.  And second, even at the level of particular expression, the Copyright Act does not protect “incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic.” A careful review of both songs’ lyrics reveals that Plaintiff's first four allegedly similar elements are expressed differently in “Natasha” and “Nikita.” And the remaining similar elements are rudimentary, commonplace, standard, or unavoidable in popular love songs.  The two songs simply “tell different stories."

Because “Natasha” and “Nikita” are not “substantially similar” as a matter of law, Plaintiff's copyright infringement claim failed as a matter of law.

Black Eyed Peas "Boom" Not "Substantially Similar"

Batts, et al. v. Adams, et al., No. 10-cv-8123 (C.D. Cal. filed Oct. 21, 2011) [Doc. 251].

Plaintiffs allege that the Black Eyed Peas' Grammy-nominated song "Boom Boom Pow" infringed Plaintiffs' copyright in the song "Boom Dynamite." On defendants' motion for summary judgment, the court employed the "extrinsic test" to determine substantial similarity of the two songs. The Court held that the allegedly protectable elements in Plaintiffs' song (the hooks, and use of the phrase "I got that" followed by the repeated used of the word "boom") were not substantially similar to the elements of the Black Eyed Peas song. Also, the Court held that the non-protectable elements of Plaintiffs' song were not entitled to copyright protection. Accordingly, the Court concluded that as a matter of law the defendants were entitled to summary judgment.