Justin Bieber and Usher appear to be headed for a big victory in a lawsuit that alleges they are song thieves. On Monday, a Virginia magistrate judge released a report that recommends the two music stars be granted summary judgment over claims of committing copyright infringement to create their hit, “Somebody to Love,” which was released off of Bieber’s My World 2.0 album.
The case, brought by Devin “the Dude” Copeland, is perhaps most notable for being a rare instance when after initially being dismissed, appeals court judges took a listen of the songs at issue and decided the choruses were similar enough to move the case forward.
Copeland successfully revived his lawsuit, which then went back to a federal court for fact-finding, but he may end up falling short once again.
That’s because U.S. Magistrate Judge Douglas Miller reviews the various depositions and expert reports and concludes that Copeland has failed to demonstrate defendants had access to his own work before creating “Somebody to Love.” Additionally, the lawsuit may be doomed because of Copeland’s inability to show striking similarity between the two works.
Copeland had various, evolving theories how the defendants accessed his own song, also titled “Somebody to Love.” His allegations mostly entailed playing the song at various showcases and having it land in the hands of music executives who were allegedly intermediaries between him and the defendants. The problem, as spelled out in Miller’s report, is that the gathered evidence established that songwriter Heather Bright and a production trio known as The Stereotypes finished their version on Nov. 19, 2009, and a lack of evidence that someone affiliated with the alleged infringers was given Copeland’s music prior to that date.
Judge Miller rejects arguments that “ambiguity in the factual record allows for an inference of timely access,” pointing to at least six individuals who made statements in depositions that didn’t correspond to Copeland’s theorized timeline. Copeland suggested a conspiracy to commit perjury, but Miller responds that “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.”
As to the question of whether the songs had sufficient common elements to be strikingly similar, Copeland pointed to what the Fourth Circuit had to say in its ruling.
“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 striking similarity to be evaluated considering the entire evidentiary record,” writes Miller. “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.”
The appeals court had revived the case in 2015 with a conclusion that the wrong intrinsic similarity test was being applied and that the choruses could be shown to largely match up.
Here, Miller acknowledges that the two songs share some elements, including the lyric and rhythm associated with the chorus or hook, but leans on a report from the defendants’ musicologist for the proposition that some of those elements are too generic to be conferred copyright protection.
“The report documented the phrase ‘somebody to love’ has been used as a song title in more than 130 licensed musical works,” he writes. (Queen had one of them.)
The same lack of originality was deemed true for the similar rhythmic patterns. Copeland’s arguments to the contrary were undercut when the judge rejected the testimony of his own expert for failing to apply the legal tests necessary to show extrinsic similarity.
As a result, the magistrate judge is now recommending that the district judge grant defendants’ motion for summary judgment and dismiss the case. A result to the contrary would be highly surprising. Here’s the full report.
The defendants were represented by Stephen Noona at Kaufman & Canoles as well as Jeremiah Reynolds and Greg Korn at Kinsella Weitzman.