July 14, 2015

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Wyche Inside IP
By Wallace K. Lightsey

Justin Bieber turned 21 this year.  He also lost a significant copyright case in the U.S. Court of Appeals.

Bieber and another mega-recording artist, Usher, were sued for copyright infringement in connection with the song, “Somebody To Love,” which according to Billboard Magazine is Bieber’s 9th-biggest hit.  The plaintiffs, songwriter Devan Copeland and his songwriting partner, alleged that Usher was given a copy of an album of songs Copeland was working on in 2009, including a recording of “Somebody to Love.”  According to Copeland, Usher expressed initial interest in having Copeland record an album but never followed up.  Subsequently, Usher released a YouTube demo of a song called “Somebody to Love.”  That song was recorded and released by Justin Bieber in the spring of 2010, and a remixed version that included Usher was released a few months later.

The U.S. District Court dismissed the case, finding that the general public would not “construe the aesthetic appeal of the songs as being similar.”  Despite some shared elements, the District Court concluded that the “mood, tone, and subject matter” of the songs differed “significantly.”

On appeal by Copeland, a three-judge panel of the Fourth Circuit vacated the District Court’s findings and remanded the case for further proceedings.  After listening to each of the songs, the Court of Appeals found that the District Court put too much emphasis on the differences in “mood” and “tone” and too little on the similarities between the most important element of the songs – their choruses.  Noting the importance of the “hook” in popular music, the appellate court explained that “courts routinely permit a finding of substantial similarity where the works share some especially significant sequence of notes or lyrics.”  Because the hook is the part of the song most often repeated and remembered, the Fourth Circuit concluded that the choruses in the songs at issue were similar enough that a reasonable jury could find the songs intrinsically similar. “It is not simply that both choruses contain the lyric ‘somebody to love’; it is that the lyric is delivered in what seems to be an almost identical rhythm and a strikingly similar melody,” the court pointed out. Therefore, the issue of similarity was a question that should be decided by a jury.

Sorry, Justin, but hey – welcome to adulthood!