“Somebody to [Sue]”

Uh oooh. Looks like Usher and Justin Bieber might be getting the Pharrell/Robyn Thicke treatment in court, except in their case, it could actually be warranted. I don’t know though. I just hope they didn’t do what it appears they may have done. The lines might not be so blurred in this lawsuit. Plaintiffs, Devin “the Dude” Copeland and Mario Overton, brought suit against Usher and Bieber last year sometime for alleged copyright infringement of Bieber’s hit song “Somebody to Love”. Plaintiffs complained that their 2008 song, with a similar title, was hijacked by Usher and Bieber as there were similar elements in the song, most notably the song’s hook. For the misappropriation, the plaintiffs demanded $10 million in damages. The federal judge dismissed the plaintiff’s complaint, with prejudice, back in March of 2014, but the plaintiff’s did not stop there. They appealed the judge’s decision and it appears as though the 4th Circuit Court Judge feels as though their claim has real merit.

The facts as presented: Copeland shopped a number of his songs, including the one at issue, to a few music executives who passed it along to Usher. Usher’s mother/manager engaged in some discussions with Copeland’s representatives about the song, which resulted in nothing and by 2009, communications between the two had ceased. Usher composed the lyrics for “Somebody to Love” and Bieber later recorded a version with Usher’s assistance and released it on his My World 2.0 album. He even made a remix to it. The song was a huge hit, so naturally the Plaintiff’s got wind of it and decided to sue both Usher and Bieber.

The original federal court was to determine whether the songs were “extrinsically similar” because they had similar ideas and whether the songs were also “intrinsically similar” in their expression of those similar ideas. One of the main issues within the case was figuring out whose opinions should be used in determining whether or not the songs were in fact substantially similar. The plaintiff’s argued that the industry professional’s opinions should be the gauge, while Bieber argued the general public. The court found that the general public’s subjective views were the ones that mattered most and opined that the songs could not reasonably be construed as being substantially similar. The judge did find that there were some similarities between the parties’ songs, but not enough to support a finding of copyright infringement since the court found that the “mood, tone, and subject matter differ significantly”. The court went on to state that the general public in hearing the songs would not find them to be substantially similar without being prompted to listen out for them. And with that, they denied Plaintiff’s claim and dismissed the lawsuit with prejudice.

Now, I can’t say I’ve read every copyright case to know the exactly how courts decide these issues, but I can say I don’t believe I’ve ever heard this particular federal court’s interpretation of copyright law ever. To say that listening to the song without being prompted to listen out for the similarities is a reason to deny infringement liability is actually kind of absurd given all of the testimony by music experts and musicologists (or whatever you call those fancy music types) that generally plays a big part in these types of cases. I don’t think they would ever have a need to bring those guys in if it were as simple as does this song sound like this one to you? No, ok. Case closed. No infringement here. And to dismiss with prejudice was a little much. Did the court forget the fact that the parties were in communication about this very song itself? And the timing? Was none of that factored into the decision? This is where I get to play devil’s advocate a little because I just heard the clips and I don’t think the songs sound ANYTHING alike and I was actually looking for the similarities. They both sound like noise…but I don’t think that’s enough to claim substantial similarities. Blurred Lines sounded more similar to Marvin Gaye’s songs than these songs do and I don’t even agree with that holding. It seems like the judiciary is trying to legislate in the copyright field instead of interpret the laws as written and decided. It’s clear to me they’re heading in a different direction than what I’m used to. Might be time for Congress to update the Copyright Act and provide us with some advisory notes or something or this is going to get out of hand - fast.

So the appellate court reversed and remanded the case for further proceedings. I’m guessing now we’ll get to hear from all the music experts and such to see if the songs are in fact substantially similar. We can’t get hung up on the “somebody to love” part. I’m sure there’s plenty of songs out there with that title and it wouldn’t be far fetched to think that they’re discussing similar ideas – uhhh somebody to love, right? Let’s remember the goal of the copyright act: to promote the arts, not to stifle creativity by allowing people to own common phrases and ideas. I don’t think we’ll have very much music to listen to at that point. Stay tuned, because I’m fairly certain neither of these guys are going down without a fight.

Check out the songs at:

http://www.tmz.com/videos/0_z8envx1b

http://www.tmz.com/videos/0_08zygurp