Musician Devin Copeland and his songwriting partner, Mareio Overton, wrote a song entitled “Somebody to Love” in 2008 and registered the copyright for the song later that year. Usher Raymond IV and his manager, Jonetta Patton, listened to Copeland’s album, including “Somebody to Love,” in late 2009. During a phone conversation with Copeland, Patton expressed interest in Copeland’s music and having him join Usher on tour. Nothing came of that. A few months later, Usher recorded and posted on YouTube a song entitled “Somebody to Love.” Usher’s protégé, Justin Bieber, also recorded a song entitled “Somebody to Love,” releasing his version in the spring of 2010.
Copeland sued Usher and Bieber for copyright infringement, alleging access to Copeland’s work and a striking resemblance to Copeland’s work. Bieber and Usher filed a Rule 12(b)(6) motion to dismiss Copeland’s complaint, arguing that no reasonable jury could find that the Copeland song and the Usher and Bieber songs were substantially similar. The district court agreed with Usher and Bieber and dismissed Copeland’s complaint. The Fourth Circuit Court of Appeals vacated the district court’s ruling and remanded the case.
In a copyright infringement action, the copyright owner must prove 1) possession of a valid copyright and 2) copying of the original and protectable elements of the work. Since direct proof of copying is seldom available, the copyright owner can prove copying indirectly by showing that the alleged infringer had access to the copyrighted work and that the infringer’s work is substantially similar to the original work. Substantial similarity is the only issue in this case. The existence of a valid copyright and access by the alleged infringers are not at issue.
The substantial similarity showing has two components: extrinsic and intrinsic similarity. And while both bear, obviously, on the likeness between a 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. Because the inquiry is objective, expert testimony often will be relevant. 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.
Intrinsic similarity, by contrast, is a subjective inquiry that centers on the impressions of a work’s ‘intended audience,’ usually the general public. So under the intrinsic prong, we analyze works as cohesive wholes, without distinguishing between protected and unprotected elements, just as the works’ intended audiences likely would encounter them in the marketplace. We often have described intrinsic similarity as measuring the ‘total concept and feel’ of the works in question.
(Opinion pdf pages 8 – 9).
The intrinsic similarity component of the substantial similarity analysis is assessed from the perspective of a work’s intended audience. The first step is identifying the right audience. The Fourth Circuit agreed with the district court that the general public is the right audience for the Copeland work.
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.
(Opinion pdf page 15).
The Fourth Circuit stated that this was the question at the heart of the 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,’ are sufficiently intrinsically similar to give rise to a valid infringement claim.
(Opinion pdf page 15).
Usher and Bieber made three versions of “Somebody to Love.” Copeland made one version. The Fourth Circuit considered the three Usher-Bieber versions as one song, but listened to all iterations of the song. The Fourth Circuit thought that the district court placed too much weight on the mood and tone of the songs and not enough weight on the similarities, the choruses, of the songs.
The Fourth Circuit agreed with the district court in as much as the Fourth Circuit thought the Copeland song was R&B and that the Usher-Bieber songs were dance pop.
A difference in genre is not enough to escape liability as a copyright infringer.
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. 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 same-genre works that came before it.
(Opinion pdf pages 18 – 19).
The Fourth Circuit also agreed that the Copeland and Usher-Bieber songs were dissimilar in many respects. The Fourth Circuit also agreed that in a numerical count, the points of dissimilarity between the songs might 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. Even when quantitative majorities of two works bear little resemblance, courts routinely permit a finding of substantial similarity where the works share some especially significant sequence of notes or lyrics. 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, where it may be central to a song’s economic success. From “Respect” by Aretha Franklin to “Seven Nation Army” by the White Stripes, the choruses or hooks of popular music songs are often disproportionately significant, relative to the amount of time or number of measures they occupy. Virtually 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.
(Opinion pdf pages 20 – 22).
The Fourth Circuit concluded that the choruses of the Copeland and Usher-Bieber songs were similar enough and significant enough that a reasonable jury could find the songs intrinsically similar.
The Fourth Circuit also recognized that “I need somebody to love” is a common phrase in popular music. But the Fourth Circuit focused on listening to the choruses in their entirety, as an ordinary listener would.
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.
(Opinion pdf page 23).
The Fourth Circuit concluded that the choruses of both songs were significant enough that the chorus could be the basis for a finding of intrinsic similarity. The chorus is the heart of the composition for both works.
In both the Copeland song and the Bieber and Usher songs, the singing of the titular lyric is an anthemic, sing-along moment, delivered at a high volume and pitch. Quite simply, it is the heart of the compositions, 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.
(Opinion pdf page 24).
This case is Copeland v. Bieber, No. 14-1427, Fourth Circuit Court of Appeals.