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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division
DEVIN COPELAND et al.,
Plaintiffs,
V.
Civil Action No. 2:13cv246
JUSTIN BIEBER et al.,
Defendants.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
This copyright infringement case is before the court on Defendants' Joint Motion for
Summary Judgment, or Alternatively, Partial Summary Judgment. (ECF No. 127). Plaintiffs'
suit alleges that Defendants violated the Copyright Act of 1976 by infringing Plaintiffs'
copyrights in a music recording titled "Somebody to Love."
S^ Compl. (ECF No. 1).
Defendants' motion for summary judgment argues that they did not have access to Plaintiffs'
song; that their song was independently created before any evidence suggests they could have
had access; and that the allegedly infringing songs are not strikingly or substantially similar to
the Plaintiffs' recording.
Joint Mem. Supp. Defs.' Mot. Summ. J. (ECF No. 128). The
district court referred this Motion pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil
Procedure 72(b). (ECF No. 214). After reviewing the factual record to date and in light of
recently excluded expert testimony, the undersigned finds that there is no genuine issue of
material fact as to whether Defendants had timely access to Plaintiffs' music or whether the
works in question are sufficiently similar to create a jury issue as to copying. Accordingly, this
report recommends that Defendants' Motion for Summary Judgment (ECF No. 127) as to all
claims be GRANTED and the case be DISMISSED.
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I.
A.
BACKGROUND
Procedural History
Plaintiffs, Devin Derico Copeland ("Copeland") and Mareio Overton ("Overton")
brought this copyright suit against Justin Bieber ("Bieber") and Usher Raymond ("Usher"), as
well as numerous other parties involved in the writing, production, and distribution of a musical
recording titled "Somebody to Love." (ECF No. 1). On May 16, 2016, Defendants filed this
Motion for Summary Judgment. (ECF No. 127). Because Plaintiffs' opposition to the motion
relied, in part, on expert testimony about the similarity between the music in question.
Defendants also moved to exclude the testimony of Plaintiffs' music expert, Paul Arnold. (ECF
No. 152). This court considered that motion and recommended that Paul Arnold's testimony be
excluded because he failed to apply the legal tests necessary to show extrinsic similarity, and his
testimony would not be otherwise helpftil to the jury. (ECF No. 212).' The district court
adopted that recommendation. (ECF No. 217). As a result. Defendants' Motion for Summary
Judgement is now ripe for judicial review.
B.
Factual Background^
Copeland is an aspiring R & B singer, song-writer, and producer. His cousin, Overton,
has helped Copeland write the lyrics to his songs for many years. In the fall of 2008, Copeland
' Defendants also challenged the expert testimony of Jason Deans, a Certified Public Accountant who
sought to testify on the proper calculation of damages. This court recommended that Deans' testimony be
partially admitted. ^
(ECF No. 213). However, Deans' testimony is not relevant to the court's
consideration of summary judgment.
^The factual record in this case is extensive. The evidence ofrecord includes depositions of19 different
individuals. Most of these depositions were taken six to eight years after the relevant events took place.
As a result, there is little consistency and frequent ambiguity on the details of when particular events
occurred or who was present for them. This report attempts to describe the conflicting timelines as
succinctly as possible. However, as will be discussed below, the factual inconsistencies or ambiguities in
the timeline do not alter the conclusion that there is no genuine issue of material fact over whether the
Defendants had access to Copeland's music under the theory put forth by Plaintiffs, or that the song in
question was independently created before Defendants may have had access.
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and Overtoil worked together to write and produce a song, performed by Copeland, titled
"Somebody to Love" ("Copeland's Song"), which was featured on a recording titled "My Story
II." Copeland claims this song was infringed upon by Defendants' song of the same name.
In addition to Bieber and Usher, Copeland has named as defendants Heather Bright
("Bright"), Bright's publishing company B-Rhaka Publishing, Universal Music Corporation,
Sony/ATV Music Publishing LLC, Bieber Time Publishing LLC, WB Music Corporation, and
Def Jam Recordings (collectively "Defendants"). The Defendants claim Bright is the individual
who, in conjunction with others no longer named as parties in this suit, independently created the
version of "Somebody to Love" later recorded and performed by Bieber and Usher. Bright, as a
writer of the accused song, is also affiliated with Sony/ATV Music Publishing and WB Music
Corporation. Universal Music Corporation and WB Music Corporation are two of the largest
music recording conglomerates in the world, each owning many smaller record label companies
and collectively representing thousands of artists. Def Jam Recordings is one of the music labels
owned by Universal Music Corporation. Bieber is signed to Def Jam Recordings.
With respect to Defendants' various iterations of "Somebody to Love," there is no
dispute that Bieber's original version was first released on his "My World 2.0" album on March
23, 2010, and received substantial airplay throughout the United States. That original version
was also remixed and featured on two other albums: Bieber's "Never Say Never: The Remixes"
and Usher's "Versus" (collectively "Accused Songs"). Copeland and Overton both acknowledge
that Copeland's Song was never widely distributed, sold, or publicly performed. S^ Copeland
Dep. 275:19-25, 276:1-5 (ECF No. 129-3); Overton Dep. 158:6-15 (ECF No. 129-4). And while
Copeland's theory of how Defendants came to hear his song has evolved,^ he now alleges that
^In his original complaint, Copeland alleged that a copy ofhis album, "My Story II," had been given to
Jonetta Patton, who is Defendant Usher Raymond's mother and purportedly then-manager. Copeland, his
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Defendants gained access to his song after it was given to Kirk Lightbum, a music executive
who worked with Usher's A & R representative,'* Mark Pitts, at Sony Music Entertainment
("Sony"). The factual claims concerning this theory of access have two distinct, over-lapping
timelines which are described below. Considering the evidence of both timelines in the light
most favorable to Plaintiffs, they have produced no evidence of access by a relevant party prior
to Defendants' creation of the first Accused Song in November 2009.
1.
Timeline for Independent Creation of the Accused Song
There is no dispute that by November 19, 2009, a final demo^ of the Accused Song had
been written and recorded by its creators. In October or November of 2009, Keith Naftaly
("Naftaly"), who worked in A & R at Sony contacted Bright and asked her to write a song to
pitch for Usher's next album. Bright Dep. 9:5-19 (ECF No. 129-5). Bright is a song-writer,
musician, and singer, who frequently writes songs used by other artists. Naftaly worked with
Mark Pitts, who was an A & R executive that represented Usher and thus, was responsible for
mother, and Kevin Lawson - who eventually contracted with Copeland to promote his music - allegedly
participated in a telephone conference with Ms. Patton on January 5, 2009, at which time she expressed
that she and her son had heard Copeland's music and enjoyed it. Both Ms. Patton and Kevin Lawson
testified during their depositions that this phone call never took place. Jonetta Patton Dep. 12:18-20 (ECF
No. 129-14); Kevin Lawson Dep. 24:24-25; 25:1-22 (ECF No. 129-13). And Copeland and his mother
conceded that they had no way of showing whether it was in fact Jonetta Patton they spoke to.
Copeland Dep. 156:10-14 (ECF No. 129-2); Roxane Copeland Dep. 219:11-18 (ECF No. 129-3).
Although Copeland does not pursue this claim of access in his pleadings opposing the instant motion, the
caller's representations would likely be inadmissible hearsay and thus, inadequate to rebut Patton's sworn
deposition testimony.
Greensboro Professional Fire Fighters Ass'n. Local 3157 v. City of
Greensboro. 64 F.3d 962, 967 (4th Cir. 1995); Fed. R. Civ. P. 56(e). The court recognizes that the
caller's identification statements might be non-hearsay if Patton was Usher's agent at the time of the call,
but no evidence to that point has been offered and Patton's deposition testimony suggests she was not.
^Fed. R. Evid. 801; Patton Dep. 12:11-13 (ECF No. 129-14).
^"A & R" stands for "Artists & Repertoire," which is a person or division within a record label company
"that is responsible for talent scouting and the artistic and commercial development of the recording
artist." A&R - Artists and Repertoire. Music Careers, http://www.musiccareers.net/industry-terms/a-andr/.
^Here, "demo" refers to a version ofthe song that was produced by the creators to be used by an artist as
a reference for recording their own, final version of the same song.
129-5).
Bright Dep. 18:6-9 (ECF No.
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developing music to be used in his albums. Bright testified that Naftaly requested something that
would be a "lay-up" in the United Kingdom, but "fresh" in the United States. Id at 9:10-13.
According to Bright, this meant that Naftaly was looking for something that was similar to music
already popular in the U.K. (i.e., a guaranteed hit) but that would be a new sound in the U.S. Id.
at 10:14-22. Bright said that this was the only direction she was given before she began working
on the song, ^jdat 13:8-16; 14:1-5.
During that conversation, Bright also suggested to Naftaly that they bring in a music
production trio known as "The Stereotypes." Id 9:14-15. The trio consists of Jeremy Reeves,
Ray Romulus, and Jonathan Yip (collectively "The Stereotypes"). Bright had already been
working with The Stereotypes on another project and approached them with the idea of working
together on this new assignment within a few days of speaking with Naftaly. Id at 14:7-15.
Bright testified that she had already developed the concept for the song "Somebody to Love"
years before Naftaly approached her. Id at 9:8-10. Bright also stated that she did not provide
The Stereotypes with any music as a reference point for the new song, but simply relayed the
conversation she had with Naftaly. Id at 14:11-15. The Stereotypes agreed to work with Bright
on the song and quickly created a music-track entitled "HB Juice." Jeremy Reeves Dep. 23:2125 (ECF No. 129-8). Bright travelled to the studio and worked with them to develop the lyrics
and melody of the song, using the instrumental track created by The Stereotypes. Bright Dep.
9:17-19 (ECF No. 129-5). On a CD submitted by Defendants, Bright can be heard singing lyrics,
without any instrumentals in the background, to the melody that would eventually be
incorporated in Defendants' version of "Somebody to Love." Dec. of Jonathan Yip, Ex. 1 (ECF
No. 132).
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Bright testified that once she and The Stereotypes had worked out the lyrics and melody,
they recorded a final version of the demo, which was then submitted to Naftaly. Bright Dep.
16:18-19 (ECF No, 129-5). This final version was finished on November 19, 2009, and featured
a male singer. Sterling Simms, who was utilized to provide a male-vocal reference for Usher. Id
at 16:22-25, 17:1-6; Dec. of Johnathan Yip, Ex. 2 (ECF No. 132). After providing the recording
to Naftaly, Bright was not involved in the subsequent recordings or alterations made to the song
by Usher, Bieber, or any other defendants. Bright Dep. 21:15-16. Although the production
values and vocal track are obviously different from the later released versions of the Accused
Song, there is no dispute that the demo version recorded by Sterling Sims with Bright and The
Stereotypes onNovember 9, 2009 is the same in all material respects to the Accused Songs.
2.
Timeline for Plaintiffs' Theory of Access to the Copeland Song
Sometime in 2007 or 2008, Copeland was invited by a family friend, Laura Jones, to
perform in a "showcase" (i.e., talent show) in Maryland. At the show, Ms. Jones introduced
Copeland to Peter Stockton ("Stockton"), who was a judge in the competition.^ Stockton was a
film-maker, but also had connections to the music industry and ran an internet radio channel.
Among Stockton's connections to the music world were two individuals, Kevin Lawson
("Lawson") and Malik Brooks ("Brooks"). Lawson and Brooks ran Sang Reel Media, Inc.
("Sang Reel"), a company that would scout, develop, and promote musical talent. Copeland
purportedly gave Stockton a copy of his "My Story 11" recording during a meeting they had at
the Maryland showcase, and Stockton expressed to Copeland that he would reach out to his
^Stockton testified in his deposition that this showcase occurred sometime after 2011, and that he had
originally been introduced to Copeland by Laura Jones via telephone. Stockton Dep. 44:6-45:17 (ECF
No. 129-12). However, viewing the evidence in the light most favorable to Plaintiffs, the deposition
testimony on this matter from other witnesses supports the account that there was an in-person meeting
facilitated by Laura Jones in Maryland, before Copeland became formally involved with Stockton and his
associates.
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music-industry connections. Stockton testified that he eventually gave Copeland's music to
Lawson and Brooks, that the pair liked what they heard, and conversations about Sang Reel
working with Copeland began sometime later. ^
Stockton Dep. 45:21-25, 46:1-17 (ECF No.
129-12). Brooks agrees that he received Copeland's music, but he testified that Copeland rather than Stockton - gave him a "demo" in September 2009 when he met him at a showcase in
New York City. Malik Brooks Dep. 114:19-25, 115:1-4, 117:5-10 (ECF No. 129-11).
After meeting at the Maryland showcase, plans were apparently made for Copeland to
meet with Stockton's music associates, but there are varying accounts on how and when
Copeland actually met Lawson and Brooks. Stockton testified that he and Lawson travelled to
Copeland's home in Chesapeake, Virginia, in October 2008 for a visit to discuss Copeland's
career and what Lawson, through his company Sang Reel, could do to help him.
Stockton
Dep. 47:13-25, 48:1-14, 49:3-25 (ECF No. 129-12). Stockton places this meeting in October
2008 based on the fact that he received a speeding ticket in Charlottesville, Virginia, on October
19, 2008 - Stockton was living in West Virginia at the time and would have presumably passed
through Charlottesville on his way to Chesapeake. Id at 48:1-14. Lawson recalls meeting
Copeland after a request from Stockton, but doesn't remember when or where the meeting was.
See Lawson Dep. 15:24-25, 16:1-25, 30:7-25, 31:1-2 (ECF No. 129-13).
Overton and
Copeland's mother, Roxane Copeland ("Roxane"), also testified that a meeting with Stockton
and Lawson occurred in Chesapeake in October 2008, citing the death of a relative as a point of
reference for their memory.^ See, e.g.. Mareio Overton Dep. 58:1-25, 59:1-13 (ECF No. 129-4).
Copeland himself, however, testified that the meeting at his home in Chesapeake was in October
^Roxane testified that she filed a copyright registration form for Copeland's Song in 2008, but evidence
presented at her deposition appears to suggest that additional filings and correspondence in August or
September 2010 resolved discrepancies in her original submissions. S^ Roxane Dep. 100:10-11; 112:1125, 113:1-25, 114:1-15 (ECF No. 129-3).
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2009 and only Lawson was present. Copeland Dep. 86:10-25, 87:1-25 (ECF No. 129-2). Each
ofthese witnesses agrees that Brooks was not present atthis initial meeting.^
In addition to timing, the substance of Copeland's first meeting with Lawson is also
ambiguous. It is generally agreed that the parties discussed Copeland's music career and what
steps Sang Reel could take to further it. However, Copeland testified that he signed a "Shopping
Agreement" with Lawson at the October 2009 meeting in Chesapeake, in which Sang Reel
contracted to shop Copeland's music to record labels and other music-industry professionals.
^
Copeland Dep. 91:5-7 (ECF No, 129-2). Brooks' also testified that it was at the initial
meeting with Copeland that the Shopping Agreement was signed - although the accounts of
when, where, and with who that meeting occurred are different. ^
Brooks Dep. 57:5-8 (ECF
No. 129-11). Stockton, Roxane, and Overton all testified that no agreement was signed at the
meeting in Chesapeake. See, e.g.. Overton Dep. 68:10-17 (ECF No. 129-4).
According to Stockton and Roxane, the Shopping Agreement was not entered into until at
least December 29, 2009, when an email with the contract was sent to Roxane and Copeland by
Stockton. See, e.g.. Roxane Dep. 158:22-25, 159:1-13 (ECF No. 129-3). Roxane did testify that
she made a $2,500 payment to Lawson around November 2009 before the Shopping Agreement
was signed, and that the payment was for Lawson to "wine and dine" music executives. See
Roxane Dep. 165:1-3 (ECF No. 129-3). To that end, Roxane stated that Lawson was shopping
Copeland's music before any agreement had been signed, but could not specifically name anyone
that he had given the music to. Id at 189:1-25, 190:17-23. The Shopping Agreement itself is
dated October 17, 2009, and Stockton testified that the agreement was not dated when he
Brooks' testimony is largely inconsistent with the other accounts. Brooks claims that there was a
meeting between him, Lawson, Roxane, and Copeland in October 2009 at a restaurant in Virginia. See
Brooks Dep. 18:8-14 (ECF No. 129-11). He also claims that Lawson had not met Copeland prior to this
2009 meeting. Id. at 57:2-4.
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emailed it in December 2009. ^
Stockton Dep. 22:5-10; 24:2-13 (ECF No. 129-12). Brooks
testified that he and Lawson met with Copeland and Roxane at a restaurant in Virginia in
October 2009, and that the Shopping Agreement was signed at that meeting. Brooks Dep. 18:814 (ECF No. 129-11). Viewing all of this testimony in the light most favorable to Plaintiffs, the
earliest the Shopping Agreement could have been signed was October 17, 2009 - the date which
appears on the document and corresponds to the earliest testimony describing the contract.
Copeland Dep. 91:5-7 (ECF No. 129-2); Brooks Dep. 57:5-8 (ECF No. 129-11).
Copeland testified that it was at this meeting that he was told the quality of his "My Story
11" album did not meet industry standards, and that he would need to rerecord it. ^
Copeland
Dep. 96:11-21 (ECF No. 129-2). According to Copeland, Lawson had allegedly shown the
music to several A & Rs who told him the production quality was not acceptable. Id. at 99:4-20.
Lawson's testimony, while vague on the timing, did appear to confirm that Copeland was told he
needed to rerecord the music after it had been shown to music-industry professionals. See
Lawson Dep. 16:6-25; 17:1-25; 18:1-10 (ECF No. 129-13). But Lawson did not testify that he
ever shared the music personally with anyone. Instead, Brooks, Lawson's Sang Reel partner,
described what Plaintiffs claim is their link to Bright and the other creators of the Accused
Songs.
Brooks testified that he did share the music with two industry executives who he
identified by name - Kirk Lightbum and Craig Kallman.^
Brooks Dep. 36:7-14 (ECF 129-
11). But he also testified that he would not have taken the music to anyone before the Shopping
Agreement was signed and that, because of how artists were signed in the music industry (i.e.,
that new talent was not signed in the fourth quarter), he would not have shopped Copeland's
^ Brooks stated that he took the music to Craig Kallman's office, rather than giving it to Kallman
personally. Brooks Dep. 36:10-11 (ECF No. 129-11). Kallman was not deposed and Plaintiffs produced
no evidence of a connectionbetween Kallman and any accused infnnger.
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music until January or February of 2010. ^
Brooks Dep. 128:15-24; 78:20-25, 79:1-7 (ECF
No. 129-11). Brooks and Lawson both testified that Brooks was the one to give Copeland's
music to Kirk Lightbum at Sony. See, e.g.. Lawson Dep. 17:15-17 (ECF No. 129-13). Lawson
stated he was unable to go with Brooks to see Lightbum because he was in the hospital at the
time - an event he placed in 2010. ^
jd at 60:24-25; 61:4-7; 62:11-13 (ECF No. 129-13).
Lightbum denies everreceiving the Copeland Song from Brooks. Lightbum Dep. 26:3-25 (ECF
No. 129-15).
But viewing Brooks' testimony in the light most favorable to Plaintiffs, a
reasonable juror could conclude that Lightbum would have had access to it sometime in January
or Febmary of 2010.
In late 2009, Lightbum was inteming for Bystorm Entertainment ("Bystorm"), which
although now under the corporate umbrella of Sony, was not at the time.'^ S^ Lightbum Dep.
17:3-12 (ECF No. 129-15). At that point he had never worked with The Stereotypes, and did not
know Heather Bright or Naftaly. S^ Lightbum Dep. 25:8-23 (ECF No. 129-15). But he did
work for Mark Pitts, Usher's A & R representative at Sony. Lightbum Dep. 19:17-21 (ECF No.
129-15). Pitts testified that Lightbum never shared the Copeland Song with him, and that he did
not know Copeland, Overton, Brooks, Lawson, or their company. Sang Reel. S^ Pitts Dep.
39:5-25, 40:1-4 (ECF No. 129-16). Pitts did know Naftaly, whom he described as a co-worker at
Sony. Id at 29:3-5.
He testified that - apparently without making any request to do so -
Naftaly presented the Accused Song during a meeting with their mutual boss, and asked if Pitts
would like to pitch it to any of his artists, which led to him suggesting the song to his client.
Lightbum explained that he started an internship with Bystorm around 2008 or 2009. Lightbum Dep.
16:15-19 (ECF No. 129-15). Bystorm was an entertainment company that Mark Pitts worked for, which
was eventually bought by Sony, prompting Pitts' move to Sony's A & R department. ^ id at 13:4-25.
Although Lightbum would sometimes visit Pitts at Sony headquarters, he didn't have an office there until
2010 or 2011. Id at 17:15-19. He stated that he didn't do A & R work at the time, but was looking for
artists to bring to Pitts. Id. at 19:17-21.
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Usher.
id at 31:2-25, 32:1-24. Naftaly was apparently not deposed but Bright testified that
he did not provide her with any specific directions regarding the lyric or music for the Accused
Song. ^Bright Dep. 13:8-16; 16:1-5 (ECF No. 129-5).
Brooks testified that around March 2010, after he had shown Copeland's music to
Lightbum, he convinced Copeland to rerecord the work and began searching for music producers
to help him.
Brooks Dep. 58:17-25, 59:1-15 (ECF No. 129-11) (reviewing emails from
March 2010 with music producers contacted to work with Copeland). Arrangements were made
for Copeland to move to New Jersey, where Sang Reel would house him while he worked on the
music with producer Eddie Jenkins . S^ Copeland Dep. 98:2-21 (ECF No. 129-2). Roxane
testified that in March or April of 2010 she drove Copeland to meet Lawson and Brooks in
Maryland, and that he left for New Jersey from there. S^ Roxane Dep. 23:10-15, 147:17-25,
148:1-25, 149:1-4 (ECF No. 129-3). Copeland would spend most of 2010 living in New Jersey
with Lawson's cousin, Antwan Byers, and eventually returned to Virginia after the relationship
with Sang Reel spoiled over alleged financial issues and creative disagreements. He testified
that he first heard the Bieber version of the Accused Song towards the fall of 2010. S^
Copeland Dep. 186:16-20 (ECF No. 129-2). Copeland and Overton filed suit on May 2, 2013,
nearly three years after they discovered the alleged infringement.
3.
Compl. (ECF No. 1).
Evidence of Similarity between the Copeland Song and the Accused Songs
The parties largely agree that, with the exception of the hook (i.e., the song's chorus), the
Copeland Song is not similar to any version of the Accused Songs. As explained by Defendants'
expert Lawrence Ferrara Ph.D ("Ferrara"), the harmonic qualities of the songs are different.
Copeland's Song is in a minor key (D minor) while the Accused Songs are in major key (Bb
major). Decl. of Lawrence Ferrara Ph.D, Ex. 1
11
13, 37 (ECF. No. 131-1) ("Ferrara Report").
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The tempo and rhythm of both songs are different. Copeland's Song is an R & B song with a
tempo of 101 beats per minute, and the Accused Songs are upbeat with a tempo of 130 beats per
minute. Ferrara Report,
23-27. The lyrics of both songs are almost completely different,
except both use a similar phrase within the chorus; "I need somebody to love" in the Copeland
song, and "I just need somebody to love" in the Accused Songs. FerraraReport, H31As with
the lyrics, the melodies of both songs are entirely different except for some similarity in the
chorus which is the focus of the parties' dispute.
Ferrara analyzed the melody of the chorus and found no similarities. He stated that the
Bieber version of the Accused Song contains several different melodies as a result of the way it
was sung by the artist. After transcribing the hook of each song to D major and comparing it to
the hook of the Copeland Song in D minor, Ferrara concluded that the succession of pitches in
each version was significantly different than the Copeland Song. Fenara Report,
40-45.'^
One of Ferrara's transcriptions is re-printed here for clarity:
QTistrUi
Copeiand
0;47
Dm
i
stJme - N» • dy
to
love
A
Bicbcr
0:43
Dm
Em"
i
1
-1—+
y
to
lo\e..
Id. In addition to illustrating the difference in the succession of pitches, Ferrara's transcription
also illustrates the most significant similarity between the two songs. In both songs the phrase
" Testimony from Plaintiffs' proffered expert, Paul Arnold, was excluded by the court in a separate
opinion, (ECF No. 152), but Arnold also agreed that the songs were different in tempo, lyrics, and song
structure. Arnold Report at 1 (ECF No. 129-18).
'^Again, although Plaintiffs' expert was excluded, Arnold's comparison ofthe transcribed melody ofboth
hooks also showed no notes in common. Amold did intend to opine, however, that the melodies were
similar because their notes - though dissimilar - were "clusteredwithin three semi-tones." Amold Report
at 9 (ECF No. 129-18).
12
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"somebody to love" is set to a similar melodic rhythm with a series of eighth notes followed by a
longer note under the word "love." Ferrara testified, however, that this rhythmic similarity is
trite and generic, and has been used extensively in popular music, including in multiple songs
using the same title and lyric.
Ferrara, a professor of musicology at New York University, testified without
contradiction that the phrase "somebody to love" was generic and commonly used in song lyrics
and as a song title. Records from music licensing agencies ASCAP and BMI include 130 songs
with the title "Somebody to Love." Ferrara Report,
31. Dr. Ferrara also noted two iconic
songs from popular music with the same song title, including a version by Queen, and one by
Jefferson Airplane. On this basis, Ferrara opined that this lyrical similarity was unremarkable
and common. Ferrara Report, ^ 35. His expert report also analyzed in detail three popular songs
which use the "somebody to love" phrase in the chorus, and which are set to a substantially
similar rhythm, including a version by Bobby Darin in 1960, Jefferson Airplane in 1967, and pop
singer Leighton Meester in 2009. Ferrara Report,
53-68. Finally, Ferrara analyzed a similar
rhythmic setting in the chorus of Reba McEntire's 1986 release, "Somebody Should Leave."
Based on his analysis, Ferrara opined that any rhythmic similarities in the melody between the
Copeland Song and the Accused Songs were also generic, and not original. Ferrara Report,
46-47. Although Plaintiffs argue the merits of Ferrara's conclusions, they have not produced
admissible expert testimony to rebut or contradict them.
II.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 requires the Court to grant a motion for summary
judgment if "the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v.
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Catrett, 477 U.S. 317, 322-24 (1986). "A material fact is one 'that might affect the outcome of
the suit under the governing law.' A disputed fact presents a genuine issue 'if the evidence is
such that a reasonable jury could return a verdict for the non-moving party.'" Spriggs v.
Diamond Auto Glass. 242 F.3d 179, 183 (4th Cir. 2001) (quoting Anderson v. Liberty Lobby.
Inc., 477 U.S. 242, 248 (1986)). If there is no genuine issue as to any material fact, "[t]he
moving party is 'entitled to a judgment as a matter of law' because the nonmoving party has
failed to make a sufficient showing on an essential element of her case with respect to which she
has the burden of proof" Celotex Corp.. 477 U.S. at 323.
The party seeking summary judgment has the initial burden of informing the Court of the
basis of its motion and identifying materials in the record it believes demonstrates the absence of
a genuine dispute of material fact. Fed. R. Civ. P. 56(c); Celotex Corp.. 477 U.S. at 322-25.
When the moving party has met its burden to show that the evidence is insufficient to support the
nonmoving party's case, the burden shifts to the nonmoving party to present specific facts
demonstrating that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp.. 475 U.S. 574, 586-87 (1986).
In considering a motion for summary judgment, "the court must draw all reasonable
inferences in favor of the nonmoving party, and it may not make credibility determinations or
weigh the evidence." Reeves v. Sanderson Plumbing Prods.. Inc.. 530 U.S. 133, 150 (2000); see
Anderson. 477 U.S. at 255. "[A]t the summary judgment stage the judge's function is not
himself to weigh the evidence and determine the truth of the matter but to determine whether
there is a genuine issue for trial." Anderson. 477 U.S. at 249.
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III.
ANALYSIS
To state a claim for copyright infringement, plaintiffs "must establish 'ownership of the
copyright by the plaintiff and copying by the defendant.'" Universal Furniture Int'l Inc. v.
Collezione Eurooa USA. Inc.. 618 F.3d 417, 428 (4th Cir. 2010) (citation omitted). "Absent
direct proof of copying,... a plaintiff may prove copying indirectly, with evidence showing that
defendant had access to the copyrighted work and that the purported copy is 'substantially
similar' to the original." Copeland v. Bieber. 789 F.3d 484, 488 (4th Cir. 2015) (citing Universal
Furniture Int'l. Inc. v. Collezione Europa USA. Inc.. 618 F.3d 417, 435 (4th Cir. 2010)). In
cases where access cannot be shown, the court may still submit the issue of copyingto the jury if
the two works are so similar as to give rise to an inference of access. Bouchat v. Baltimore
Ravens. Inc.. 241 F.3d 350, 354 (4th Cir. 2000). 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." Id
If access is established. Plaintiffs may establish that a work was copied by evidence that
the accused work is substantially similar. To show a "substantial similarity," a plaintiff must
establish both "extrinsic and intrinsic similarity." Id at 489. That is, under this two-pronged
test, a "plaintiff must show that the two works are (1) 'extrinsically similar because they contain
substantially similar ideas that are subject to copyrightprotection' and (2) 'intrinsically similar in
the sense that they express those ideas in a substantially similar manner from the perspective of
the intended audience.'" Universal Furniture. 618 F.3d at 435 (quoting Lyons P'ship. L.P. v.
Morris Costumes. 243 F.3d 789, 801 (4th Cir. 2001)).
"Expert testimony often will be relevant" to show extrinsic similarities "[b]ecause the
inquiry is objective." Copeland. 789 F.3d at 489 (citing Universal Furniture. 618 F.3d at 435);
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Towler v. Savles. 76 F.3d 579, 583 (4th Cir. 1996) ("[A] plaintiff must show - typically with the
aid of expert testimony - that the works in question are extrinsically similar because they contain
substantially similar ideas that are subject to copyright protection."). Courts examining the
extrinsic similarities between two works 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." Copeland. 789 F.3d at 489 (citing Universal Furniture. 618 F.3d at 436-37).
In contrast, intrinsic similarity involves a "subjective inquiry that centers on the impressions of a
work's 'intended audience,' usually the general public." Id (citing Lyons P'ship, L.P.. 243 F.3d
at 801). When assessing intrinsic similarities between two works, "the factfinder looks to the
'total concept and feel of the works, but only as seen through the eyes of the . . . intended
audience of the plaintiffs work." Universal Furniture. 618 F.3d at 436 (emphasis and alteration
in original) (citing Lyons P'ship. L.P.. 243 F.3d at 801). Analytic discretion of the two works is
not appropriate under the intrinsic test of similarity because the ordinary listener does not engage
the songs in this way. Id at 437 (citing Taylor Corp. v. Four Seasons Greetings. L.L.C.. 403
F.3d 758, 966 (8th Cir. 2005). That is, the "intrinsic test [is] whether 'the ordinary observer,
unless he set out to detect the disparities, would be disposed to overlook them, and regard their
aesthetic appeal as the same." Id (quoting Peter Pan Fabrics Inc. v. Martin Weiner Corp.. 274
F.2d 487, 489 (2d Cir. I960)). "This portion of the test considers whether the intended audience
could determine that the works are substantially similar, usually without the aid of expert
testimony." Towler. 76 F.3d at 584 (citing Dawson v. Hinshaw Music. Inc.. 905 F.3d 731, 73637 (4th Cir. 1990)).
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A.
Plaintiffs cannot demonstrate any alleged infringer had timely access to the
Copeland Song.
"[TJhere is no actionable infringement where the creation of a work of art substantially
similar to a copyrighted work occurs independently of [that] copyrighted work." Ganz Bros.
Toys V. Midwest Importers of Cannon Falls. Inc.. 834 F. Supp. 896, 899 (E.D. Va. 1993). Here,
there is no dispute that the Accused Song was created on November 19, 2009. As a result, for
evidence of access to be relevant to Plaintiffs' claim of copying, they must establish that an
alleged infringer had access to Copeland's Song before that date. "Access [to the plaintiffs
work] may be shown by demonstrating that the infringer had an opportunity to view or copy the
protected material." Building Graphics. Inc. v. Lennar Corp.. 708 F.3d 573, 578 (4th Cir. 2013).
However, the mere "possibility that such an opportunity could have arisen will not suffice."
Towler. 76 F.3d at 582 (emphasis added). The plaintiffs theory cannot rely on "speculative
reasoning" to establish that the defendants had access, particularly when there are multiple
"intermediaries" involved. Bouchat v. Baltimore Ravens. Inc.. 241 F.3d 350, 354 (4th Cir.
2000); Building Graphics. 708 F.3d at 579.
In this case. Plaintiffs have failed to demonstrate any dispute of material fact necessary to
establish access by the creators of any of the Accused Songs.
Although the factual
circumstances surrounding the inception of Copeland's Shopping Agreement with Sang Reel are
ambiguous, there is no genuine dispute that Heather Bright and The Stereotypes created their
version of "Somebody to Love" before Copeland's music was shared with anyone remotely
connected to Defendants. The undisputed evidence shows that Bright and The Stereotypes
completed their recording on November 19, 2009. Dec. of Johnathan Yip, Ex. 2 (ECF No. 132).
Plaintiffs apparently do not dispute that Bright and The Stereotypes created their song on that
date, and the recording in the record establishes this song as materially identical to all of the
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Accused Songs recorded by Usher and Bieber. Plaintiffs argue, however, that Bright or someone
involved in the creation had access to Copeland's music beforehand. Therefore, in order to
contradict Defendants' claim of independent creation and create a genuine dispute of material
fact over access, Plaintiffs must point to evidence that shows someone affiliated with the alleged
infringers was given Copeland's music prior to November 19, 2009. ^
Bouchat. 241 F.3d at
354.
It is undisputed that none of the creators of the Accused Songs - Bright, nor any of The
Stereotypes members, Romulus, Reeves, and Yip - knew anyone affiliated directly with
Plaintiffs. Each of the creators testified that they did not know Plaintiffs or their promoters,
Lawson, Brooks, or Stockton. Plaintiffs' theory of access thus depends solely on deposition
testimony that Lawson or Brooks shared the music with Kirk Lightbum, who was then affiliated
with Sony Music, and Usher's A & R rep, Mark Pitts.
But despite Plaintiffs' arguments that the ambiguity in the factual record allows for an
inference of timely access through Lightbum, the evidence they have produced does not create a
dispute over whether Defendants had access prior to November 19, 2009, when Bright recorded
the final demo of the Accused Song. For his part, Lightbum denied ever receiving the Copeland
Song from Brooks or anyone else.
Lightbum Dep. 26:3-25 (ECF No. 129-15). Brooks'
deposition testimony permits an inference of access. But his testimony places his meeting with
Lightbum in January or Febmary of 2010, several months after the Bright/Stereotype recording
was completed and given to Naftaly.
Brooks Dep. 128:15-24; 78:20-25, 79:1-7 (ECF No.
129-11). This timeline is supported by Brooks' testimony and documentary evidence that shows
he was searching for producers to rerecord Copeland's music in March 2010. S^ Brooks Dep.
58:17-25, 59:1-15 (ECF No. 129-11). The timeline is further supported by Lawson's testimony
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that he could not attend the meeting between Brooks and Lightbum because he was in the
hospital in 2010. ^
Lawson Dep. 60:24-25; 61:4-7; 62:11-13 (ECF No. 129-13). In addition,
several witnesses testified that the Shopping Agreement between Sang Reel and Copeland was
not signed until December 2009. See, e.g.. Roxane Dep. 158:22-25, 159:1-13 (ECF No. 129-3).
Plaintiffs have not put forward any evidence to contradict Brooks' statement that he gave the
music to Lightbum in 2010. Without such evidence, there is no dispute that Defendants' song
was completed prior to Lightbum receiving Copeland's Song, and any access through Lightbum
would not have permitted Bright or The Stereotypes to copy Copeland's work.
In their briefs, Plaintiffs emphasize a dispute over when the initial meetings between
Copeland and Sang Reel occurred, but the Plaintiffs have not identified how that dispute would
affect when Lightbum or anyone else could have provided Copeland's music to the Defendants.
Plaintiffs only go as far as to say that the ambiguity makes it possible for a jury to conclude
Lawson or Brooks received Copeland's music as early as 2008. But again, there is no ambiguity
as to Brook's testimony that he did not give Copeland's music to Lightbum until after the
Shopping Agreement was signed and when record labels would customarily be signing artists in
January or Febmary of 2010.
Similarly, the parties dispute whether the Shopping Agreement was entered into in
October or December of 2009, but neither date would contradict the timeline testified to by
Brooks. Indeed, Plaintiffs argue that the shopping agreement was signed in October of 2009 and,
although the details of the meeting are different, Brooks' testimony was to the same effect. S^
Brooks Dep. 18:8-14 (ECF No. 129-11). But the fact that the agreement may have been signed
in October of 2009 does not contradict Brooks' statement that he visited Lightbum in January or
Febmary of 2010. And even though Brooks does not place an exact date on his visit with
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Lightbum, he does testify that he would not have shopped any music in the final months of 2009
because of the way record labels typically conducted business. Sqq Brooks Dep. 128:15-24;
78:20-25, 79:1-7 (ECF No. 129-11). In addition, while Lawson may have stated to Roxane and
Copeland that he was shopping Copeland's music prior to their initial meeting or before an
agreement was entered into, there was no testimony as to who the music was allegedly given to
or when. And in any event, such testimony would be inadmissible hearsay that cannot contradict
the sworn testimony of non-parties Lawson and Brooks.
Greensboro Professional Fire
Fighters Ass'n. 64 F.3d at 967 (4th Cir. 1995).
In addition to placing the Copeland Song with Lightbum months after the Accused Song
was recorded, there is also no dispute that Lightbum himself did not work with Bright or The
Stereotypes. S^ Lightbum Dep. 25:8-23 (ECF No. 129-15). The triple-inference Plaintiffs ask
the court to draw is to first assume (contrary to his testimony) that Lightbum had been given
Copeland's Song prior to November 19, 2009; to then assume (contrary to his testimony) that
Mark Pitts received the song from Lightbum; and finally to assume that Pitts (contrary to his
testimony) gave it to Naftaly, who admittedly worked with Heather Bright and The Stereotypes.
Each of these three inferences is purely speculative and wholly contradicted by the swom
testimony of alleged intermediaries. Interestingly, though Naftaly is the purported connection to
Heather Bright and The Stereotypes he was apparently not deposed.'^ Speculative reasoning,
particularly when multiple intermediaries - as Plaintiffs allege here - are involved, will not
suffice to show access to the allegedly infringed upon work. S^ Bouchat. 241 F.3d at 354;
Building Graphics. 708 F.3d at 579. Plaintiffs' theory implies that each of these deponents Plaintiffs' brief also asserts access through Usher himself, but this would require the same three
inferences above - ending with Pitts to Usher - and a fourth inference that Usher gave the music to
Bright, which is contradicted by their testimony. See, e.g.. Raymond Usher Dep. 18:11-18 (ECF No.
129-6) (discussing first hearing the Bright/Stereotype demo of "Somebody to Love," featuring a male
voice).
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Lightbum, Pitts, Bright, Yip, Reeves, and Romulus —either conspired to commit perjury, or
coincidentally testified to events that make Plaintiffs' theory of access impossible. But, the law
does not permit an inference of access based on this type of pure speculation particularly when it
would contradict the sworn testimony of multiple witnesses.
Bouchat. 241 F.3d at 354;
Building Graphics. 708 F.3d at 579.
Other than their tenuous theory of access. Plaintiffs have not offered any evidence to
rebut Defendants' contention that their version of "Somebody to Love" was independently
created by Bright and The Stereotypes in November 2009. Indeed, the sworn testimony of the
four collaborators who were separately responsible for the lyric and music, combined with digital
proof of a November 19, 2009 completion date, is strong evidence of independent creation. S^
Dec. of Johnathan Yip, Ex. 2 (ECF No. 132). In light of that evidence and Brooks' undisputed
testimony that he did not give Lightbum the Copeland Song until January or February of 2010,
Plaintiffs have failed to establish that any accused infringer had relevant, timely access to
Copeland's music.
Because Plaintiffs have failed to rebut the evidence of independent creation
by showing that Defendants had access to Copeland's music prior to November 19, 2009, there
is no genuine dispute of material fact as to the issue of access and summary judgment is
appropriate unless the two songs are so similar as to negate any reasonable possibility of
independent creation. Bouchat. 241 F.3d 345, at 356; s^ Building Graphics. 708 F.3d at 580
n.3 (holding that second prong of copyright infringement analysis is unnecessary where plaintiff
fails to show access).
B.
The Copeland Song is not strikingly similar to the Accused Songs
Plaintiffs have not produced evidence that any creator of the Accused Songs had access
to the Copeland Song prior to the well-documented initial recording on November 19, 2009.
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But, they still may demonstrate copying if the similarity between the two songs is so striking that
access can be inferred. Bouchat. 241 F.3d at 356. In such cases, similarity between the two
works "must be so close as to be highly unlikely to have been an accident of independent
creation." Id (citing Tv. Inc. v. GMA Accessories. Inc.. 132 F.3d 1167, 1170 (7th Cir. 1997).
Such "striking similarity" does not eliminate the requirement to prove access, but permits an
inference of access where the two works are so similar as to "create a high probability of copying
and negate the reasonable possibility of independent creation." Id (citing Gaste v. Kaiserman.
863 F.2d 1061, 1068 (2nd Cir. 1988). A claim of striking similarity must be evaluated in light of
all of the facts in a particular case, including facts surrounding any claim of access, or of
independent creation. Id "A plaintiff has not proved striking similarity sufficient to sustain a
finding of copying if the evidence as a whole does not preclude any reasonable possibility of
independent creation." Id (citing Gaste, 863 F.2d at 1068).
In this case, Plaintiffs' evidence of "striking similarity," even in the light most favorable
to them, falls short of this mark. To begin with, there is very strong, uncontradicted evidence of
independent creation. Audio tracks submitted in the record demonstrate that Bright contributed
the lyric to the song and worked with The Stereotypes to develop the music. Although Naftaly
did approach Bright about writing a song for Usher, Bright testified that she had the concept of a
song using the "somebody to love" lyric as early as 2007. A portion of the Bright/Stereotypes
collaborative process is actually recorded and submitted in the exhibits supporting Defendants'
motion for summary judgment. Dec. of Johnathan Yip, Ex. 1 (ECF No. 132) (Track Nos. 12-16
in particular involve Bright working out the chorus or hook while listening to The Stereotypes'
recorded track). Plaintiffs do not dispute any of this testimony. Instead, they assert various
immaterial inconsistencies regarding the nature of the Bright/Stereotypes collaboration.
22
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example. Defendants point out that Bright testified that Naftaly had approached her to create a
song with Usher in mind, whereas The Stereotypes were not aware the song was intended to be
used by Usher or any particular artist. Pis.' 0pp. Defs.' Mot. Summ. J., at 15 (ECF No. 133)
(citing Romulus Dep., at 25:16-19; Yip Dep., at 15:14-19).
Plaintiffs also point out an
inconsistency between Bright's testimony regarding the use of a male vocalist and the recorded
collaborations which include Bright's own experimentation with the vocal melody. Id. at 15-16
(citing Bright Dep., at 16:20-21; Yip Dep., at 12:24-13; Reeves Dep., at 26:16-17). But these
modest inconsistencies do not undermine the witnesses' other testimony or render it inherently
incredible. All four collaborators told a consistent story regarding their independent creation of
the Accused Song. In addition. Plaintiffs have produced no evidence that any of the four ever
heard - or heard of - the Copeland Song prior to the initiation of this law suit. Considering the
substantial evidence of independent creation, and the absence of evidence that the alleged
infringers actually had access to the Copeland Song, the level of similarity required to preclude a
finding of independent creation is very high.
As set forth in more detail below, the two songs do not share sufficient common elements
to be strikingly similar, and negate the sworn testimony of four professional songwriters and
musicians asserted to be responsible for independently creating the Accused Song. In fact, the
songs are largely dissimilar being related only in a few words of the lyric found in the chorus, or
hook of both. This similarity - Plaintiffs argue - is enough to reach the jury on the question of
striking similarity. In making this argument. Plaintiffs rely heavily on the Court of Appeal's
opinion remanding this case as "evidence" that the songs are strikingly similar.
But this
argument ignores the procedural posture of the case during that appeal, the extensive evidentiary
record now before this court on summary judgment, and the well-established case law requiring
23
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striking similarity to be evaluated considering the entire evidentiary record. 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.
In 2014, the District Court granted Defendants' Motion to Dismiss the copyright
infringement claim, ruling that no reasonable juror could conclude the Plaintiffs' song was
intrinsically similar to any of the allegedly infringing versions. (ECF No. 72).
Plaintiffs
appealed, and the Fourth Circuit reversed, remanding the case for discovery and further
proceedings. In concluding that the intrinsic similaritv of the two songs could not be resolved as
a matter of law, the Fourth Circuit wrote:
And when we listen to the choruses ... in the context of the entire songs, we hear
the kind of meaningful overlap on which a reasonable jury could rest a finding of
substantial similarity. 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 song 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.
Copeland v. Bieber. 789 F.3d 484, 494 (4th Cir. 2015).
The original decision subject to appeal resolved a motion to dismiss. On appeal, the
Fourth Circuit's opinion involved a de novo review of the songs' intrinsic similarity, which the
Fourth Circuit recounted in explaining its decision. Copeland. 789 F.3d at 492-93. As the
Fourth Circuit noted - it was permitted to consider the songs themselves because they were all
"integral to and expressly relied on in the complaint." Id at 490 (quoting Phillips v. LCI Int'l.
Inc.. 190 F.3d 609, 618 (4th Cir. 1999)). But considering the songs' intrinsic similarity using
only the two recordings as evidence is not the same as deciding that issue as a matter of law.
Under the appropriate standard of review, the Fourth Circuit held only that reasonable jurors
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could find the songs intrinsically similar. Repeatedly in the passage cited by Plaintiffs, and
elsewhere in the opinion, the Fourth Circuit confirms that its holding was limited to concluding
that the intrinsic similarity of the songs could not be decided as a matter of law. Id., at 492
("[W]e undertake that analysis ... to determine whether a reasonable jury could find they are
substantially similar").
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.
Because the minimal similarities between the two songs are insufficient to create a jury issue on
their striking similarity under the facts presented. Plaintiffs have not met their burden to rebut the
facts established by Defendants' motion and demonstrate a material issue of fact which would
preclude summary judgment.
C.
The two songs' similar elements are not original.
As the discussion above demonstrates. Plaintiffs cannot establish access or the striking
similarity necessary to infer access. As a result, they cannot prove copying and Defendants'
motion should be granted.
But, the Copeland song and the Accused Songs do share some
elements in common, including the lyric and rhythm associated with the chorus or hook. The
Fourth Circuit noted that these similarities could be apparent to the general audience, and in
appropriate cases may be the basis for a finding of substantial similarity.
Copeland. 789
F.3d at 493 (citing Elsmere Music. Inc. v. Nat'l Broad Co.. 482 F. Supp. 741, 744 (S.D.N.Y.
1980), afPd 623 F.2d 252 (2nd Cir. 1980)), (finding four note phrase and accompanying lyrics
protectable as "the heart of the composition"). In this case, however. Defendants' expert has
testified without contradiction that the brief similar elements shared by both songs - even in
combination - are not original. As a result, even if there were a factual dispute about access.
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Plaintiffs' inability to demonstrate any extrinsic similarity of protectable elements is fatal to their
copyright claim.
The most obvious similarity between the two songs is the lyric in the chorus, "somebody
to love." Dr. Ferrara's report establishes that this short, commonly used phrase is generic,
commonly used, and therefore not subject to copyright protection. The report documented the
phrase "somebody to love" has been used as a song title in more than 130 licensed musical
works. It also analyzed in detail several popular songs which used the phrase as both chorus and
lyric. Indeed, the Fourth Circuit in remanding the case anticipated that the use of such a
common lyrical fragment might "preclude consideration of this similarity under the extrinsic
prong where analysis is preceded by analytic dissection." Copeland. 789 F.3d at 494. Plaintiffs
have not even attempted to rebut Ferrara's opinion on this point. In the proffered but excluded
expert report. Plaintiffs' expert did not attempt to argue that the phrase was not generic. In fact.
Plaintiffs' brief opposing summary judgment ignores the evidence entirely, and continues to
emphasize the "nearly identical" lyrics, callingthem "arguably the most important lyrical portion
of each song in question." Pl.'s Mem. 0pp. Defs.' Mot. Summ. J., (ECF No. 133, at 19). But,
regardless of its importance to either song, the short, commonly used phrase is exactly the kind
of expression which is not subject to copyright protection. Copeland. 789 F.3d at 494 (citing
Peters v. West. 692 F.3d 629, 635-36 (7th Cir. 2012)); Johnson v. Gordon. 409 F.3d 12, 24 (1st
Cir. 2005) (lyric and title "You're the One for Me" is too trite to warrant copyright protection);
Acuff Rose Music. Inc. v. Jostens. Inc.. 155 F.3d 140, 144 (2nd Cir. 1988) (the phrase "You've
Got to Stand for Something or You'll Fall for Anything" too common for copyright protection);
Boone v. Jackson. 206 Fed. App'x 30, 33 (2nd Cir. 2006) (the phrase "Holla Back" used in over
thirty songs was not original); Lil' Joe Wein Music. Inc. v. Jackson. 245 Fed. App'x 873, 879
26
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(11th Cir, 2007) (finding the phrase "Go [name], It's Your Birthday" was a common hip hop
chant and not protectable).
Dr. Ferrara's report also concluded that the melodies in the chorus of the two songs were
not similar. Ferrara Report,
40-50. To conduct his analysis, Ferrara first transposed the
Accused Song to a different key, so that the notes of both hooks would share the same pitch
center. His transcriptions, which were reproduced earlier in this opinion, demonstrate that the
two melodies do not share a single note in common. Plaintiffs, again, have not rebutted Dr.
Ferrara's report with admissible evidence. Nevertheless, the proffered but excluded testimony
from their proffered expert Paul Arnold also revealed that the two melodies were different.
Arnold's transcription, which was analyzed by Dr. Ferrara in his own report, is reproduced
below:
p. Arnold
Comparison of "Somebody to Love"
Version 1 hook, starting from bar 16 of the verse:
Some bo dy to lo -ove
V pW-—
-gf
Version 2 hook, starting from bar 16 of the verse:
Some bo dy to lo ove
is:
27
oveove
g-
:et
i
%
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As Dr. Ferrara observed, even as transcribed by Arnold the two melodies do not share a single
note in common.''* The scale degrees are different and the succession of pitches are different.
Ferrara Report, HH100-103.'^ Most significantly, according to Arnold's transcription of the
Copeland Song melody, it begins with a "dramatic octave leap" which is not present in any ofthe
Accused Songs. Ferrara Report,
49, 102.
Although the succession ofpitches and scale degrees are different, Ferrara acknowledged
that the melodic rhythm of the two hooks is similar. Both use a series of eighth notes followed
by a longer note. Indeed, it was the lyric "somebody to love" set to this "nearly identical
rhythm" which led the Fourth Circuit to determine that a reasonable juror might find the two
songs intrinsically similar. Copeland. 789 F.3d at 494. But as with the phrase "somebody to
love," the rhythmic pattern Plaintiffs rely upon as evidence of copying is not original. Dr.
Ferrara identified and produced sheet music from several previously copyrighted works which
employed the same rhythmic pattern of a succession of eighth notes followed by a longer note.
Ferrara Report Exhibits A-H.
In response to Ferrara's documentation of these prior works.
Plaintiffs have not attempted to distinguish the rhythmic similarity in any of the examples cited.
Instead, their brief observes that the excerpts in question are utilized in different portions of some
of the examples. In other words, the rhythmic pattern does not fall in the same place in the
chorus or in the structure of the song generally. But the point made by these exhibits is that this
rhythmic pattern is common place, and not original to Plaintiffs' work. Original, as the term is
used in copyright, means only that the work was independently created by the author (as opposed
Defendants also submitted an audio recording where Ferrara plays both songs on the piano to
demonstrate the comparison. Dec. of Lawrence Ferrara Ph.D, Ex. 2 (ECF No. 131) (Tracks 7 & 8 of the
CD-ROM).
The Fourth Circuit's careful ear also detected the melodic differences in the two hooks. Copeland. 789
F.3d at 494 ("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.
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to copied from other works) and that it possesses some minimal degree of creativity. Feist
Publications. Inc. v. Rural Telephone Serv. Co.. 499 U.S. 340, 345 (1991). The eight exhibits
introduced by Defendants which each demonstrate the use of a similar rhythmic pattern
establishes that the pattern is not original to Plaintiffs' work, and are likely due to the fact "that
common themes frequently appear in various compositions, especially in popular music." Selle
V' Gibb. 741 F.2d 896, 905 (7th Cir. 1984). On summary judgment the non-moving party must
identify particular parts of materials in the record or other materials which contradict the
defendants' assertions or show that Ferrara's materials 'do not establish the absence of a genuine
dispute.'" Fed. R. Civ. Pro. 56(c). Plaintiffs must set forth "more than conclusory allegations
and speculation." Dash v. Mavweather. 731 F.3d 303, 311 (4th Cir. 2013). They have not.
Finally, having established that the lyric and rhythm employed in the chorus are not
original to Copeland's work. Dr. Ferrara also analyzed whether the setting of the lyric to the
rhythmic pattern might be evidence that the accused infringers copied this setting from the
Copeland Song. He found three prior art examples of the same lyric used in the same rhythmic
pattern. The transcribed versions of each are reproduced in the record. Ferrara Report, H53,
Bobby Darin; ^ 60 Jefferson Airplane; ^ 67 Leighton Meester (ECF No. 131-1), and set out
below:
BobbyDarin
0:25
i-i
J
.
d
sonw
'
f
. 1
r 1 [ f 1
• bod • V
to
lo%e
Dm
JefTerson Airplane h/f1:25 fcSP
Mttnc^hud - >
Bi>
Leighton Mccstcr rJh-Ts
Iti
love.
A-
Dni
h-T-n
1J
0:.56
Mimc-h<> • (l>
to
love.
29
^
"
1
"
Case 2:13-cv-00246-AWA-DEM Document 218 Filed 11/14/16 Page 30 of 32 PageID# 3612
As with the other musical examples, Plaintiffs' brief does not really distinguish these
examples except to observe thatthe transcribed portions of the prior art appear in different places
in the recording Ferrara sampled. For example, Plaintiffs argue that Ferrara transcribed a single
version of the chorus to Jefferson Airplane's song as performed somewhat ad-lib by the lead
singer, Grace Slick, as opposed to the established refrain, which appears several other times in
the recording. Pis.' Mem. 0pp. Defs.' Mot. Summ. J., (ECF No. 133, at 21). In addition, the
portion of the chorus cited to the Bobby Darin example appears at the end of the chorus rather
than the beginning as it does in the Copeland Song. Id at 20. Butthese differences in placement
do not undermine the exhibits as evidence that the rhythmic pattern and the setting of the lyric to
it were available in prior art and thus, not original to Plaintiffs' song. In fact, as Defendants
point out, the acknowledged similarity between the setting in Copeland's Song and the Accused
Songs - and the similar setting found in at least three prior works - is likely due to the fact that
the phrase "somebody to love" naturally lends itself to being sung in this way.'^
The substantial similarity inquiry examines both works as a whole, but analytic dissection
rightly emphasizes the aspects of Plaintiffs' work, which are protectable under copyright laws.
And to be actionable, whatever copying took place must have appropriated those elements.
Matthews v. Freedman. 157 F.3d 25, 27 (1998). "In assessing whether substantial similarity
exists, an overall impression of similarity may not be enough." Johnson v. Gordon. 409 F.3d at
19. When the impression similarity results from similar elements which are not themselves
copyrightable, "it will not satisfy the predicate requirement of originality necessary to ground the
finding of actionable copying." Id (citing Matthews. 157 F.3d at 27).
A fourth example cited by Dr. Ferrara involved the similar refrain "somebody should leave" from Reba
McEntire's 1986 song of the same name. Ferrara's report concluded this example expressed the same generic
rhythmic similarities and a melody more clearly resembling the Accused Songs. Ferrara Rept., 74-81.
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Case 2:13-cv-00246-AWA-DEM Document 218 Filed 11/14/16 Page 31 of 32 PageID# 3613
Here, the modest similarity perceived in comparing the chorus of the two works results
from their use of similar generic elements, including the phrase "somebody to love," set to a
melodic rhythm which has been used several times by other artists. Because Plaintiffs have no
evidence that any of the alleged infringers ever had access to the Copeland Song, no reasonable
juror could conclude these modest similarities were sufficient evidence of copying under Fourth
Circuit precedent. Moreover, even if access had been shown, the extrinsic analysis produced by
Defendants' well-qualified expert and unrefuted in this record, demonstrates that the two songs
share no similarities in their protectable elements. Accordingly, the court should GRANT
Defendants' Motion for Summary Judgment, terminate the Motion for Partial Summary
Judgment as MOOT, and DISMISS the case.
IV.
RECOMMENDATION
For the foregoing reasons, the court recommends that the Defendants' Motion for
Summary Judgment as to all claims be GRANTED (ECF No. 127), the Motion for Partial
Summary Judgment terminated as MOOT and the case DISMISSED WITH PREJUDICE.
V.
REVIEW PROCEDURE
By copy of this Report and Recommendation, the parties are notified that pursuant to 28
U.S.C.§ 636(b)(1)(C):
1.
Any party may serve upon the other party and file with the Clerk written
objections to the foregoing findings and recommendations within fourteen (14) days from the
date of mailing of this Report to the objecting party, 28 U.S.C. § 636(b)(1)(C), computed
pursuant to Rule 6(a) of the Federal Rules of Civil Procedure. A party may respond to another
party's objections within fourteen (14) days after being served with a copy thereof
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Case 2:13-cv-00246-AWA-DEM Document 218 Filed 11/14/16 Page 32 of 32 PageID# 3614
2.
A district judge shall make a de novo determination of those portions of this
report or specified findings or recommendations to which objection is made.
The parties are fiirther notified that failure to file timely objections to the findings and
recommendations set forth above will result in waiver of right to appeal from a judgment of this
court based on such findings and recommendations. Thomas v. Am. 474 U.S. 140 (1985); Carr
v. Hutto. 737 F.2d 433 (4th Cir. 1984); United States v. Schronce. 727 F.2d 91 (4th Cir. 1984).
Is
Douglas E. Mil!er<
United States Magistrate Juriga
DOUGLAS E. MILLER
UNITED STATES MAGISTRATE JUDGE
Norfolk, Virginia
November 14, 2016
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