December 30, 2015

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].

Record Company Copyright Claims Against Amway Survive Dismissal

Alticor Inc. v. UMG  Recordings, Inc., No. 6:14-cv-542 (M.D. Fla. Dec. 10, 2015).

In a complex dispute between mutliple record companies and Amway concerning alleged direct, vicarious and contributory infringement of pre- and post-'72 sound recordings in over 1,000 videos, the Court dismissed Amway's Rule 12(b)(6) motion to dismiss the record companies counter-claims.  First, the Court found that the record companies had adequately alleged violations of their exclusive right of public performance.  Amway argued that the "public performance right" applicable to musical compositions and other works was inapplicable to sound recordings; the Court rejected that argument.  Second, the Court found that even though the Copyright Act does not conver a "making available" right, the act of making a work available for use of a direct infringer was relevant to the record companies' indirect infringement claims.  Third, the Court agreed with Amway that Florida common law does not create a public performance right for pre-72 recordings, but nonetheless held that it would not grant Amway partial relief under Rule 12(b)(6).