Devin Copeland v. Justin Bieber
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 2:13-cv-00246-AWA-TEM. [999604678]. [14-1427, 14-1653]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1427
DEVIN COPELAND, a/k/a De Rico; MAREIO OVERTON,
Plaintiffs - Appellants,
v.
JUSTIN BIEBER; USHER RAYMOND, IV, a/k/a Usher; HEATHER
BRIGHT, individually, and d/b/a B−Rhaka Publishing; RAY
ROMULUS, a/k/a Rayro, individually and d/b/a Please Enjoy
the Music; JONATHAN YIP, individually and d/b/a Products of
the Street; JEREMY REEVES, individually and d/b/a Sumphu;
UNIVERSAL MUSIC CORPORATION; UNIVERSAL MUSIC PUBLISHING
GROUP;
SONY/ATV
MUSIC
PUBLISHING,
LLC;
WB
MUSIC
CORPORATION; THE ISLAND DEF JAM MUSIC GROUP; STAGE THREE
MUSIC (U.S.) INC.; STAGE THREE MUSIC, LLC; JONETTA PATTON,
d/b/a J Pat Management,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.
Arenda L. Wright Allen,
District Judge. (2:13-cv-00246-AWA-TEM)
Argued:
March 24, 2015
Decided:
June 18, 2015
Before WYNN, FLOYD, and HARRIS, Circuit Judges.
Vacated and remanded by published opinion.
Judge Harris wrote
the opinion, in which Judge Wynn and Judge Floyd joined.
ARGUED:
Duncan Glover Byers, BYERS LAW GROUP, Norfolk,
Virginia, for Appellants.
Stephen Edward Noona, KAUFMAN &
CANOLES, P.C., Norfolk, Virginia; Jonathan David Davis, JONATHAN
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D. DAVIS, P.C., New York, New York, for Appellees.
ON BRIEF:
Howard Weitzman, Jeremiah T. Reynolds, KINSELLA WEITZMAN ISER
KUMP & ALDISERT, Santa Monica, California, for Justin Bieber.
Nathan Muyskens, Washington, D.C., Barry I. Slotnick, Cheng L.
Chen, LOEB & LOEB LLP, New York, New York, for Heather Bright,
d/b/a B-Rhaka Publishing, WB Music Corporation, and Sony/ATV
Music Publishing, LLC.
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PAMELA HARRIS, Circuit Judge:
Musician
songwriting
Devin
partner,
Copeland
appeals
(“Copeland”),
the
together
dismissal
of
his
with
his
copyright
infringement claim against recording artists Justin Bieber and
Usher Raymond IV.
Copeland alleges that three recorded songs by
the defendants, each titled “Somebody to Love,” infringe upon
his copyright over his own, earlier song of the same name.
The
district court granted the defendants’ motions to dismiss on the
ground that no reasonable jury could find Copeland’s song and
the
defendants’
songs
sufficiently
similar
to
give
rise
to
liability for infringement.
We disagree, and therefore vacate
the
and
district
court’s
order
remand
the
case
for
further
proceedings.
I.
A.
Because Copeland appeals from an order granting a motion to
dismiss
under
Procedure,
we
Rule
12(b)(6)
recount
the
of
the
facts
as
Federal
Rules
alleged
accepting them as true for purposes of this appeal.
by
of
Civil
Copeland,
See Jackson
v. Lightsey, 775 F.3d 170, 173 (4th Cir. 2014).
Copeland is a Virginia-based R&B singer and songwriter who
performs under the name “De Rico.”
In 2008, together with his
songwriting partner Mareio Overton, Copeland began writing and
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recording songs to perform on his upcoming album, My Story II.
Among them was “Somebody to Love,” the song that is the subject
matter of this case (the “Copeland song”).
Copeland registered
a copyright for the My Story II songs, including “Somebody to
Love,” later that year.
In
late
2009,
Copeland
entered
into
discussions
with
Sangreel Media (“Sangreel”), a company that recruits artists for
record
labels
Records.
including
Island
Records,
Sony
Music,
and
RCA
Sangreel was interested in promoting Copeland’s music,
and Copeland turned over copies of My Story II so that Sangreel
could provide
promotional
copies
to
its
clients.
Among
the
figures to whom Sangreel presented Copeland’s music was Usher
Raymond IV, a world-famous recording artist who performs under
the name “Usher.”
According
heard.
to
Copeland’s
complaint,
Usher
liked
what
he
Usher’s mother and manager, Jonetta Patton (“Patton”),
scheduled
a
conference
call
with
Copeland,
during
which
she
informed Copeland that both she and Usher had listened to My
Story II, and that they were interested in having Copeland rerecord the album and join Usher on tour.
Yet the plans never
materialized, and that was the last Copeland heard from anyone
in Usher’s camp.
Within a few months of Copeland’s phone conversation with
Patton, however, Usher had recorded and posted on his YouTube
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channel a demo song also titled “Somebody to Love” (the “Usher
demo song”).
Usher did not commercially release this song, but
instead allegedly brought it to his protégé and fellow recording
artist,
Justin
Bieber
(“Bieber”).
Bieber
recorded
his
own
“Somebody to Love” (the “Bieber album song”) and released it on
his debut album, My World 2.0, in the spring of 2010.
Bieber’s
“Somebody to Love” was a hit, peaking at number 15 on the U.S.
Billboard Hot 100 chart.
final
“Somebody
to
Finally, Bieber released a fourth and
Love,”
a
remix
with
lead
vocals
by
both
himself and Usher (the “Bieber-Usher remix song”) in June 2010.
Bieber has continued to perform live versions of those songs
while on tour.
B.
Alleging that Bieber and Usher had access to the Copeland
song
via
Sangreel
and
that
their
songs
bear
a
striking
resemblance to his own work, Copeland filed suit for copyright
infringement
against
Bieber,
Usher,
and
other
defendants (collectively, “Bieber and Usher”).
associated
Bieber and Usher
moved to dismiss the action under Rule 12(b)(6), contending, as
relevant
here,
that
no
reasonable
jury
could
find
that
the
Copeland song and the Bieber and Usher songs were “substantially
similar,” as required to make out an infringement claim.
After a hearing, the district court agreed with Bieber and
Usher, and entered an order granting their motions to dismiss.
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The court applied our precedent requiring copyright plaintiffs
to
prove
two
distinct
forms
of
similarity:
“extrinsic”
similarity, an objective match between the copyright-protectable
elements of an original work and a purported copy, often based
on
expert
testimony;
and
“intrinsic”
similarity,
a
more
subjective and “essentially aesthetic judgment” as to whether
the
intended
audience
of
similar in overall effect.
two
works
would
experience
them
as
While acknowledging that substantial
similarity is “largely a matter of fact,” J.A. 249, the district
court understood our precedent to allow for dismissal on the
pleadings under either prong where no reasonable jury could find
substantial similarity of the requisite kind.
The court began its analysis with intrinsic similarity, and
the overall appeal of the two works to their intended audience.
Relying again on Fourth Circuit precedent, the court held that
the relevant “intended audience” in this case is the general
public, as the expected ultimate market for Copeland’s song.
And the general public, the court concluded, would not “construe
the aesthetic appeal of the songs as being similar,” for despite
some shared elements, the “mood, tone, and subject matter” of
the songs differ “significantly.”
that
no
reasonable
jury
could
J.A. 253-54.
find
the
songs
Having decided
substantially
similar under the intrinsic prong, the district court granted
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to
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defendants’
motions
dismiss
similarity.
without
reaching
extrinsic
This appeal followed.
II.
To establish a claim for copyright infringement under the
Copyright Act of 1976, 17 U.S.C. § 101 et seq., a plaintiff must
prove that it possesses a valid copyright and that the defendant
copied
elements
protectable.
of
its
work
that
are
original
and
See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
499 U.S. 340, 361 (1991); Universal Furniture Int’l, Inc., v.
Collezione Europa USA, Inc., 618 F.3d 417, 435 (4th Cir. 2010).
Absent direct proof of copying, which is hard to come by, a
plaintiff may prove copying indirectly, with evidence showing
that the defendant had access to the copyrighted work and that
the
purported
original.
copy
is
“substantially
similar”
See Universal Furniture, 618 F.3d at 435.
final step in the analysis that is at issue here.
Usher
do
not
challenge
Copeland’s
their access to that song.
copyright
in
his
to
the
It is that
Bieber and
song
nor
Instead, this case turns on whether
Copeland can show the “substantial similarity” that would give
rise, together with undisputed access, to a presumption that
Bieber and Usher copied his song.
We begin by laying out the standard under which we consider
that question, and addressing Copeland’s arguments for changes
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or
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refinements
to
that
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standard.
As
the
district
court
correctly explained, in this circuit, a plaintiff’s substantial
similarity showing has two components: extrinsic and intrinsic
similarity.
between
a
And while both bear, obviously, on the likeness
copyrighted
work
and
a
supposed
copy,
they
are
different in important ways.
The “extrinsic inquiry is an objective one,” looking to
specific
and
“external
criteria”
of
substantial
similarity
between the original elements (and only the original elements)
of
a
protected
work
and
an
alleged
copy.
Id.
at
435-
36; see also Dawson v. Hinshaw Music, Inc., 905 F.2d 731, 732-33
(4th
Cir.
1990).
Because
the
testimony often will be relevant.
at 435.
inquiry
is
objective,
expert
Universal Furniture, 618 F.3d
And because it is focused only on the original elements
of the copyrighted work, a court examining extrinsic similarity
must
first
engage
in
a
process
we
sometimes
call
“analytic
dissection,” separating out those parts of the work that are
original and protected from those that are not.
See id. at
436-37.
Intrinsic similarity, by contrast, is a subjective inquiry
that centers on the impressions of a work’s “intended audience,”
usually the general public.
See Lyons P’ship, L.P. v. Morris
Costumes, 243 F.3d 789, 801 (4th Cir. 2001).
So under the
intrinsic prong, we analyze works as cohesive wholes, without
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distinguishing between protected and unprotected elements, just
as the works’ intended audiences likely would encounter them in
the marketplace.
often
have
See Universal Furniture, 618 F.3d at 437.
described
intrinsic
similarity
as
measuring
“total concept and feel” of the works in question.
We
the
Id. at
436; Lyons, 243 F.3d at 801.
Copeland asks us to modify this approach in two respects.
First, pointing to Ninth Circuit case law, see Apple Computer,
Inc. v. Microsoft Corp., 35 F.3d 1435, 1442-43 (9th Cir. 1994),
Copeland suggests that we revisit our precedent and insist that
comparison under the intrinsic prong, as well as the extrinsic,
be
confined
dissection.
to
original
elements
and
preceded
by
analytic
We can put to one side whether the Ninth Circuit
actually has adopted the rule that Copeland endorses, because
our court has held just the opposite:
In Universal Furniture,
we joined the Second and Eighth Circuits in finding expressly
that
analytic
analysis,
th[e]
dissection
because
a
distinction”
is
work’s
between
inapplicable
intended
to
audience
protectable
and
the
“does
intrinsic
not
make
unprotectable
elements and instead encounters a work “as one object.”
618
F.3d at 437.
Even if we were free to reconsider that holding, Copeland
has offered no compelling reason to do so.
Indeed, as Bieber
and Usher point out, our rule, allowing for comparison of entire
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the
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works
under
intrinsic
than
disadvantages
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prong,
copyright
generally
plaintiffs
advantages
like
rather
Copeland,
by
broadening the grounds upon which a court may find intrinsic
similarity.
The district court committed no error by declining
to engage in analytic dissection before conducting its inquiry
into intrinsic similarity.
Second, Copeland urges us to adopt the rule from Shaw v.
Lindheim, 919 F.2d 1353 (9th Cir. 1990), under which intrinsic
similarity is a question reserved for the trier of fact, and
only the extrinsic similarity prong can be grounds for dismissal
at
the
summary
judgment
and
pleading
stages.
Because
the
intrinsic similarity inquiry turns on an inherently subjective
appreciation of a work’s tone and feel, Copeland argues, it is
unfair
to
personal
resolve
opinion
it
as
trumping
a
matter
what
of
could
law,
be
with
one
judge’s
overwhelming
expert
evidence showing the substantial similarity of two songs under
the extrinsic prong.
We have not squarely addressed whether a district court may
grant an infringement defendant’s motion to dismiss, or motion
for summary judgment, under the intrinsic prong alone. 1
1
Nor have
By contrast, we have indicated that a district court may
grant a motion to dismiss or summary judgment under the
extrinsic prong alone. See Universal Furniture, 618 F.3d at 436
(“A court may grant summary judgment for defendant as a matter
of law if the similarity between the two works concerns only
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we analyzed the precise scope of the Shaw rule in the Ninth
Circuit, or decided whether to adopt it in our own.
We need not
resolve those issues today, however, because in our view, even
assuming that a motion to dismiss may be granted on the ground
that no reasonable jury could find intrinsic similarity, the
district court erred in doing so here.
It is to that question
that we now turn.
III.
This court reviews de novo a district court’s decision to
grant a motion to dismiss under Rule 12(b)(6), see Jackson, 775
F.3d
at
177–78,
and
also
conducts
de
novo
the
analysis
of
whether works are substantially similar, see Peters v. West, 692
F.3d 629, 632 (7th Cir. 2012).
Like the district court, we may
examine all four of the songs at issue at the pleading stage,
because all were “integral to and explicitly relied on in the
complaint”
and
because
[their] authenticity.”
Bieber
and
Usher
“do
not
challenge
Phillips v. LCI Int’l, Inc., 190 F.3d
609, 618 (4th Cir. 1999).
A.
noncopyrightable elements of the plaintiff’s work.” (quoting
Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1257 (11th Cir.
1999))); see also Lyons, 243 F.3d at 803 (court decides as a
“matter of law” whether extrinsic similarity exists).
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As noted above, intrinsic similarity is assessed from the
perspective
of
a
work’s
intended
Furniture, 618 F.3d at 435.
audience.
See
Universal
That means that the first step in
undertaking an analysis of intrinsic similarity is identifying
the
right
audience.
The
district
court
concluded
that
the
general public was the intended audience for the Copeland song,
and we agree.
In Dawson, we clarified our intrinsic similarity analysis
by introducing the “intended audience” formulation.
Because a
primary purpose of copyright law is to “protect[] a creator’s
market,” we reasoned, the intrinsic similarity inquiry should be
keyed
to
the
creator’s
work
marketability.
impressions
—
the
of
the
impressions
intended
that
905 F.2d at 734.
audience
count
for
for
purposes
a
of
So where the market for a
given work consists of a discrete and specialized class, the
reactions
of
particularly
a
generic
ordinary
See
relevant.
id.
observer
But
in
will
most
not
cases,
be
we
cautioned, the general public is in fact the intended audience,
and “a court should be hesitant” to find otherwise.
Id. at
737; see Lyons, 243 F.3d at 801.
Copeland
ordinary rule.
argues
that
this
case
is
the
exception
to
the
According to Copeland, the intended audience for
his song was not the general public but instead the “industry
professionals”
to
whom
he
distributed
12
his
song
by
way
of
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The “market” Copeland was trying to reach, in other
words, was the Ushers of the world, and Copeland would be harmed
if industry professionals believed his song was substantially
similar to those of the defendants even if the general public
saw no resemblance.
Like the district court, we are unpersuaded.
It may be
that Copeland intended to promote his music directly to industry
professionals.
But “[i]f . . .
industry professionals reject
[Copeland’s] song because it is too similar to the [d]efendants’
songs, it would be because those companies fear that the public
will find the songs to be overly similar.”
J.A. 252 (emphasis
There is a reason that the Dawson formulation
in original).
uses the word “audience,” rather than “buyer” or “recipient”:
Ultimate
marketability
impressions
of
a
is
first-hand
not
always
purchaser
or
determined
by
recipient,
the
but
may
sometimes rest on the impressions of third parties — the work’s
actual “audience” — whose preferences the buyer or recipient has
in mind when acquiring the work.
Our decision in Lyons illustrates the point.
There, we
considered whether the intended audience for a purple dinosaur
costume resembling the character “Barney” from the television
series Barney & Friends was the adult performers who would buy
the costumes or the young children they sought to entertain.
243
F.3d
at
802.
We
concluded
13
that
it
was
the
children’s
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because
that
even
purchasers
mattered
though
of
to
they
the
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the
intrinsic
were
costumes,
not
it
similarity
themselves
was
their
the
inquiry,
intended
impressions
(or
misimpressions) that could lead adults to buy the infringing
costumes.
Id.
at
802–03.
Adults
might
discern
differences
between the two costumes, but if children could not, then there
would be no reason for adults to insist on the original — with
the result that the “knock-off” costumes would cut into Barney’s
market and the profits of Barney’s owner.
reasoning applies here.
Id. at 803.
The same
Though industry professionals may have
been the intended direct recipients of Copeland’s music, the
impressions that matter are those of the general public that
constitutes the market for popular music — because, as Copeland
admits,
J.A.
252,
would
professionals
those
are
have
in
the
mind
impressions
in
that
choosing
industry
whether
to
do
business with Copeland.
Again, this should come as no surprise.
in
Dawson
the
possibility
that
the
When we left open
intended
audience
for
a
choral arrangement of a spiritual song was more specialized than
the general public and might be limited to choral directors, we
also
made
exceptional
clear
we
were
circumstances.
subject matter
approvingly
that
there
that
from
We
courts
crafting
specifically
popular
music,
“routinely”
14
a
apply
narrow
rule
for
distinguished
the
for
which
the
lay
we
noted
observer
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Dawson, 905 F.2d at 737.
That is because the intended
audience for popular music is usually an ordinary listener or,
put differently, the general public.
And indeed, the entire
premise of Copeland’s case is that his song is substantially
similar to one that appears on a multi-platinum album by one of
the world’s most recognizable popular music stars.
This is not
a case about niche audience appeal, and there is no reason to
think
of
the
“intended
audience”
as
anything
other
than
the
general public.
B.
Finally, we come to the question at the heart of this case:
Whether the songs at issue, assessed from the perspective of the
intended audience — here, the general public — and taking into
account their “total concept and feel,” Lyons, 243 F.3d at 801,
are sufficiently intrinsically similar to give rise to a valid
infringement
negative,
claim.
holding
The
that
district
no
court
reasonable
requisite intrinsic similarity.
jury
answered
could
in
the
find
the
But under the applicable de
novo standard of review, see Peters, 692 F.3d at 632, we must
listen
for
ourselves
and
come
to
our
own
conclusion.
And
because the general public typically encounters popular music
songs by hearing them from start to finish, we undertake that
analysis by listening to the songs in their entirety and side by
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side, to determine whether a reasonable jury could find that
they are subjectively similar.
1.
As a preliminary matter, we should clarify that the “songs”
to which we refer include all three of the defendants’ versions
of “Somebody to Love”: the Usher demo version, the Bieber album
version, and the Bieber-Usher remix version.
At oral argument,
Copeland suggested that each of those songs must be considered
individually, and separately compared to the Copeland song.
disagree.
In
our
sufficiently
similar
view,
to
the
each
defendants’
other
that
three
they
may
songs
be
one
of
them
fails
to
meet
the
threshold
for
are
grouped
together, and the same intrinsic analysis applied to all.
any
We
If
intrinsic
similarity, then all of them do.
The Bieber album song and the Bieber-Usher remix are to our
ears identical; the only difference we can hear is that Bieber
is the only singer featured on the album song, whereas Usher
provides
lead
vocals
in
elsewhere on the remix.
the
second
verse
and
backing
vocals
On the Usher demo song, Usher is the
only singer featured, and that song is in a different key than
the others, presumably to accommodate his different vocal range.
But
the
Usher
demo
song
is
otherwise
in
lock-step
with
the
others down to minor details — everything from the lead singer’s
exclamation
of
“oh”
in
the
introductory
16
section
to
the
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distinctive synthesizer chords in the verses and the bass line
in the pre-chorus. 2
By the unscientific intrinsic standard, the
three Bieber and Usher songs are not just substantially similar
to one another; they are the same.
2.
We turn now to a comparison of the Copeland song with,
collectively, the three Bieber and Usher songs.
The district
court acknowledged that the Usher and Bieber songs “have some
elements in common” with the Copeland song.
J.A. 253.
the
was
district
court,
what
was
dispositive
a
But for
significant
difference in the overall “aesthetic appeal” of the respective
songs.
J.A. 254.
We cannot agree.
In our view, that analysis
attaches too much weight to what the district court termed a
difference in “mood” and “tone,” and too little to similarities
between the “element” of the songs — their choruses — that is
most important.
First, if by “mood” and “tone” the district court meant
genre, then we agree with this much:
The Copeland song belongs
to a different genre than the three Bieber and Usher songs.
2
More specifically, the synthesizer chords in the three
songs share
a
distinctive
“gated”
effect:
Instead
of
maintaining a steady tone, the chords sharply fade in and out in
a stabbing, off-beat fashion. And in all three songs, the prechorus and chorus bass line follows an “octave” pattern,
repeating the same note (e.g., a C or a B-flat) but jumping up
and down a full scale, which lends a forward-moving, propulsive
effect to the music.
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Though all fall under the same broad umbrella of popular music,
the Copeland song is squarely within the R&B subgenre, while the
Bieber and Usher songs would be labeled dance pop, perhaps with
hints of electronica.
Indeed, that difference is striking upon
first listen, and at least as a linguistic matter, the very fact
of these different genres might be thought to make the songs
different in “concept and feel,” Lyons, 243 F.3d at 801, or, in
the words of the district court, in “aesthetic appeal,” J.A.
254.
But as Bieber’s counsel conceded at oral argument, while
genre may be relevant to intrinsic analysis of musical works, it
cannot be dispositive under copyright law.
For if a difference
in genre were enough by itself to preclude intrinsic similarity,
then nothing would prevent someone from translating, say, the
Beatles’ songbook into a different genre, and then profiting
from an unlicensed reggae or heavy metal version of “Hey Jude”
on the ground that it is different in “concept and feel” than
the original.
From Copeland’s perspective, it may be true that
the “aesthetic appeal” of an R&B song is different, in some
sense, than that of a dance pop song — but if there is going to
be a dance pop version of his R&B “Somebody to Love,” then it is
his to record or to license, so that he can reap the full return
on his creative efforts.
Pub.
Grp.,
Inc.,
150
Cf. Castle Rock Entm’t, Inc. v. Carol
F.3d
132,
18
140
(2d
Cir.
1998)
(“total
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concept and feel” analysis must take account of fact that works
from different genres “must necessarily have a different concept
and feel”).
And by the same token, of course, were we to put
too much stock in identity of genre at the intrinsic stage, we
would risk deeming each successive work in a genre — whether it
be R&B, ragtime, or bossa nova — an appropriation of the samegenre works that came before it.
Second, we do not doubt that the songs at issue here are in
many respects dissimilar.
And if substantial similarity were a
purely quantitative inquiry, asking only whether the majority of
the
works
in
question
overlapped,
we
would
agree
with
the
district court that no reasonable jury could find the requisite
intrinsic similarity.
For instance, while the Copeland song
concludes with a repeated instrumental figure, the Bieber and
Usher songs end more abruptly, after ad-libbed vocal lines.
The
Bieber and Usher songs include a post-chorus interval, with the
lyric “I-I need somebody” sung in a syncopated manner, that has
no
equivalent
significantly,
in
the
the
Copeland
songs’
verses
song.
feature
And
perhaps
different
most
vocal
melodies and beats 3 as well as different lyrical content, with
3
The Copeland verses feature a hectic R&B beat, with a
shaker and a busy eighth-note pattern on the bass drum.
The
musical accompaniment in those verses is two chords played in a
backbeat, with a whimsical sound reminiscent of a circus organ.
Both differ significantly from the sparser beats and regimented
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the Copeland verses lamenting the end of a relationship gone
sour and the Bieber and Usher verses conveying the hope and
optimism of the start of a relationship with an unidentified
love interest.
The district court may have had some or all of
these in mind when it referred to differences in “mood, tone,
and
subject
matter,”
J.A.
253,
and
we
agree
that
taken
numerically, the points of dissimilarity may well exceed the
points of similarity.
But what that analysis fails to account for, we think, is
the relative importance of these differences as compared to what
the songs reasonably could be heard to have in common: their
choruses.
little
Even when quantitative majorities of two works bear
resemblance,
substantial
courts
similarity
routinely
a
the
where
permit
share
some
works
significant sequence of notes or lyrics.
finding
of
especially
See Swirsky v. Carey,
376 F.3d 841, 851 (9th Cir. 2004) (overlap in first measure of
chorus
—
seven
total
notes
—
enough
to
make
pop
songs
substantially similar); Fisher v. Dees, 794 F.2d 432, 434 & n.2
(9th
Cir.
1986)
(similarity
in
first
six
measures
of
songs,
amounting to twenty-nine seconds on a forty-minute album, enough
to constitute appropriation of album); Elsmere Music, Inc. v.
three-chord progression of the verses in the Bieber and Usher
songs.
20
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Nat’l Broad. Co., 482 F. Supp. 741, 744 (S.D.N.Y.), aff’d, 623
F.2d 252 (2d Cir. 1980) (four-note phrase accompanying lyrics “I
love
New
York”
protectable
because
it
is
“the
heart
of
the
composition”); Santrayll v. Burrell, No. 91 Civ. 3166, 1996 WL
134803,
phrase
at
*1–2
“uh-oh”
(S.D.N.Y.
four
times
measure is protectable).
Mar.
in
25,
a
1996)
(repetition
distinctive
rhythm
of
the
for
one
And 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.
It is the chorus — often termed the “hook,” in recognition
of its power to keep a listener coming back for more — that many
listeners will recognize immediately or hear in their minds when
a song title is mentioned.
As the part of a song that is most
often repeated and remembered, a chorus hook is important not
only
aesthetically
but
also
commercially,
central to a song’s economic success.
where
it
may
be
See, e.g., Gary Burns, A
Typology of ‘Hooks’ in Popular Records, 6 Popular Music 1 (1987)
(cataloging characteristics and definitions of term “hook,” and
noting that “the hook is ‘what you’re selling’” and that hooks
are “the foundation of commercial songwriting, particularly hitsingle writing”).
From “Respect” by Aretha Franklin to “Seven
Nation Army” by the White Stripes, the choruses or hooks of
popular
music
songs
are
often
disproportionately
21
significant,
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the
amount
of
Pg: 22 of 24
relative
to
time
or
number
of
measures
they
occupy.
See id. at 1 (“[V]irtually no hit record is without a
bit of music or words so compelling that it worms its way into
one’s memory and won’t go away.”).
After listening to the Copeland song and the Bieber and
Usher
songs
as
wholes,
we
conclude
that
their
choruses
are
similar enough and also significant enough that a reasonable
jury
could
obvious
find
the
similarity,
songs
of
intrinsically
course,
is
mirrored in the songs’ titles:
the
similar.
shared
The
chorus
most
lyric,
“I [] need somebody to love.”
As Bieber and Usher point out, this phrase is common in popular
music, appearing most famously in songs also titled “Somebody to
Love” by psychedelic-rock band Jefferson Airplane and arena-rock
band
Queen,
and
common
lyrical
phrases
generally
are
not
copyrightable, see Peters, 692 F.3d at 635–36 (discussing rap
songs’
use
of
stronger”).
the
That
maxim
“what
might
does
preclude
not
kill
me,
consideration
makes
of
me
this
similarity under the extrinsic prong, where analysis is preceded
by analytic dissection to determine which portions of a work are
protectable.
intrinsic
Instead,
But
prong,
we
as
we
examine
Bieber
do
the
and
not
engage
Usher
chorus’s
in
concede,
lyrics
analytic
under
the
together
dissection.
with
the
accompanying music, taking the works in their entirety, as an
ordinary musical listener would.
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And when we listen to the choruses that way, and in the
context of the entire songs, we hear the kind of meaningful
overlap
on
which
a
reasonable
substantial similarity.
jury
could
rest
a
finding
of
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.
To us, it sounds as though there are
a couple of points in the respective chorus melodies where the
Bieber and Usher songs go up a note and the Copeland song goes
down a note, or vice versa.
In our view, however, a reasonable
jury could find that these small variations would not prevent a
member
of
the
general
public
from
hearing
substantial
similarity. 4
We also conclude that the choruses of the Copeland song and
the Bieber and Usher songs are sufficiently important to the
songs’ overall effect that they may be the basis for a finding
4
In this respect, comparison with the Jefferson Airplane
and Queen songs cited by Bieber and Usher undermines rather than
supports their position.
To the lay listeners of this panel,
the Copeland and Bieber and Usher choruses are much more similar
to each other in “total concept and feel” than they are to the
refrains of those classic rock‘nʹroll songs.
Because courts
have often taken judicial notice of such well-known songs, see,
e.g., ZZ Top v. Chrysler Corp., 54 F. Supp. 2d 983, 986 n.6
(W.D. Wash. 1999); Testa v. Janssen, 482 F. Supp. 1195, 1199 n.3
(W.D. Pa. 1980), we may consider them for purposes of this
comparison, though we emphasize that our holding today rests on
our analysis of the Copeland song and the Bieber and Usher songs
alone.
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of intrinsic similarity.
Pg: 24 of 24
In both the Copeland song and the
Bieber and Usher songs, the singing of the titular lyric is an
anthemic,
sing-along
pitch.
Quite
moment,
simply,
delivered
it
is
at
a
“the
high
volume
heart
of
and
the
composition[s],” Elsmere Music, 482 F. Supp. at 744, the most
prominent and memorable part of the songs, and just the sort of
significant sequence that courts have found sufficient to render
musical works substantially similar.
Whether a member of the
general public could experience these songs primarily through
their
choruses
and
thus
find
them
substantially
similar,
notwithstanding the differences catalogued above, is in our view
a close enough question that it cannot be disposed of as a
matter of law and should instead be decided by a jury.
IV.
In summary, we hold that a reasonable jury could find that
the
Copeland
song
and
intrinsically similar.
the
Bieber
and
Usher
songs
are
Because our holding is sufficient to
dispose of this appeal, we decline to reach Copeland’s other
arguments.
For
the
reasons
set
forth
above,
we
vacate
the
judgment of the district court and remand the case for further
proceedings.
VACATED AND REMANDED
24
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