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On Thursday, a federal judge handed a summary judgment victory to Brad Paisley, Carrie Underwood, Kelley Lovelace and others involved in the creation and publishing of the platinum-selling country song, “Remind Me.”
The litigation was certainly a serious matter. In December 2013, U.S. District Judge Aleta Trauger took a look at the factual allegations made by plaintiff Amy Bowen (known professionally as Lizza Connor) and decided she had plausibly stated a copyright infringement claim. The latest ruling from the same judge demonstrates how standards toughen later in the case after discovery is pursued and both sides submit expert testimony to determine whether there are any triable issues to take to a jury.
Bowen was given significant benefit of the doubt by making a reasonable case that the defendants had access to her own “Remind Me” song. She performed it at bars and restaurants around Nashville, and in 2008 participated in a country music songwriting workshop in which Lovelace was a guest speaker offering critiques of her song. Three years later, Lovelace would work with Paisley on their own “Remind Me,” and while there wasn’t much evidence that Lovelace took Bowen’s song with him, access was sufficiently alleged.
But the plaintiff still needed to show substantial similarity to have hopes of winning her case.
There are a lot of differences between the two “Remind Me” songs, but what the works had in common was how “remind me” and “baby, remind me” were repeated often enough in the hooks of each song. At the earlier stage of the case, Trauger wrote this could amount to “more than mere coincidence” and primed some exploration of how these lyrics were used.
As a result, the risks for the defendants went way up, and often in these situations there’s a settlement rather than the costly pursuit of litigating the case to a final judgment. This time, however, the defendants, including EMI April Music and Sony Music Entertainment, didn’t back down.
As a short phrase, “remind me” didn’t even muster thin copyright protection. It got none, according to Trauger. So could Bowen and her musicologist Judith Finell (the same one who testified on behalf of the Marvin Gaye family in the “Blurred Lines” case) convince the judge that the phrase was used similarly enough that a reasonable juror would see the Paisley song as an infringement?
The judge wrote in an opinion released Thursday that merely repeating the phrase nine times is not sufficiently similar, nor is the fact that the two works share the feature of shifting the melody beneath the lyrics. That’s just an “idea,” and given the variation in the melodies, the judge writes, “no lay listener would recognize this element of variation as a similarity.”
Plus, there were, as the judge put it, “broader dissimilarities in context, structure, mood, melody, and harmony,” plus distinctions in the overall mood and theme: Bowen’s was regretful about a lost love, while Paisley’s is upbeat and hopeful about igniting a spark between a couple.
So while “remind me” might be qualitatively important to both songs, and there could be some discrete melodic features shared, Trauger ultimately came to the conclusion that the plaintiff has not shown enough “to render the expressions of the hook phrases in the two works substantially similar.”
The defendants were represented by Robb Harvey, Keith Randall, Timothy Warnock and Elizabeth Gonser.
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