Singers Justin Bieber and Usher just cleared a major hurdle in their quest to bring a $10 million copyright infringement lawsuit over their 2010 song collaboration “Somebody to Love” to an end. On November 14th, a U.S. magistrate judge recommended that their summary judgment be granted and the case be dismissed again.
Two years ago, a Virginia federal district court granted a summary judgment and dismissed the case, filed by Devin Copeland and Mareio Overton, after ruling that “Somebody to Love” was not “intrinsically similar” to their song of the same name. This meant the court did not believe that the general public would think the two songs were strikingly similar based on “total concept and feel.” The Fourth Circuit Court of Appeals revived the suit on appeal, however, ruling that the district court made an error in granting the motion for summary judgment on the issue of intrinsic similarity, because it believed that the choruses, often the most memorable part of songs, were similar enough for a reasonable jury to find that they were intrinsically similar. The summary judgment was vacated and the case was remanded for further proceedings.
Magistrate Judge Douglas Miller first looked at the issue of whether Bieber and Usher had access to Copeland and Overton’s song. The defendants had filed a motion for summary judgment on the basis that they never had access, and that there was no striking similarity between the songs. Access and striking similarity are required to prove copying in a copyright infringement case. According to the judge’s report, in cases where access can’t be proven, “the court may still submit the issue of copying to the jury if the two works are so similar as to give rise to the inference of access. But to substitute for evidence of access, the similarity between the two works must be so striking as to ‘negate the reasonable possibility of independent creation.’” The plaintiffs’ theory of defendants’ access—which the court described as having “evolved”— to their version of “Somebody to Love” was that the song was given to a music executive who worked with Usher’s A&R rep. Judge Miller found that Overton and Copeland’s timeline of events did not establish access, because evidence was undisputed that the songwriter and producers behind the defendants’ song completed their version before the plaintiffs met anyone connected to the defendants.
The judge did not think the timing ambiguity in the factual record rose to an inference of access either, because the date of the creation of defendants’ song was definite, and there was no evidence that anyone the plaintiffs met with worked with Usher and Bieber’s songwriter or production team. Therefore, the plaintiffs could not prove access.
The judge then examined the issue of striking similarity. He stated that “there is strong, uncontradicted evidence of independent creation” on the part of the defendants, based on testimony and recordings from the songwriters and producers; a concept for the song dated back to 2007. The judge further found that the songs were just not strikingly similar. He addressed the Court of Appeals’ ruling about the choruses by writing, “While the court uses the phrase strikingly similar in describing one aspect of their comparison, it was not evaluating striking similarity of the type necessary to negate independent creation.” He added, “The court’s opinion did not even address ‘striking similarity’ as evidence of access. Moreover, its review was limited to the record before it, which included plaintiffs’ detailed claims of access which have not been substantiated by their evidence.” Judge Miller did determine that there were similarities in the lyrics and the choruses but they weren’t original. “Somebody to love” was found to be generic and commonly used lyrics, and more than 130 musical works used the words as a song title. An expert testified that the choruses had different pitches, and even though the melodic rhythm was the same, several other copyrighted works used it as well.
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The judge concluded by recommending that Usher and Bieber’s motion for summary judgment be granted on all claims and the case be dismissed.
The case is Devin Copeland et al v. Justin Bieber et al, Eastern District of Virginia, 2:13cv246.
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