11:56am PT by Eriq Gardner
Justin Bieber Attorneys Fight to Save Their Experts After Missing Deadline in Copyright Lawsuit
When the 4th Circuit Court of Appeals revived a copyright lawsuit last June against Justin Bieber and Usher, it set the stage for a showdown where the two musical superstars would face a judge and potentially a jury for lifting material to create their 2010 song, "Somebody to Love." But anyone who watched musicologists battle at the "Blurred Lines" trial last year might be in for a shocker: Bieber and Usher might not get to present any expert testimony whatsoever.
That's because on March 30, Virginia federal judge Arenda L. Wright Allen got fed up with repeated delays and refused to amend a scheduling order even though both sides — including plaintiff Devin "the Dude" Copeland — consented. The problem is that Bieber and Usher had until March 21 to serve up their expert reports. Their attorneys thought they'd be given an extension to April 15, but oops, poor assumption.
On Friday, Bieber's lawyers at Kinsella Weitzman as well as local counsel made an emergency motion begging for reconsideration, writing, "The effect of the Order is to preclude Defendants from presenting expert testimony on any subject, including copyright infringement and damages. Defendants believe the Court could not have intended to prevent Defendants from serving expert reports altogether, and that this was merely an unintended consequence of the Court denying the motion in whole rather than denying it in part."
The $10 million lawsuit claims that Copeland authored a similarly titled song in 2008 and shared some of the essential elements including a hook ("I … need somebody to loooooove!') with Usher and others in the music industry. The 4th Circuit reversed a trial judge's dismissal of the case, writing, "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 find the songs intrinsically similar."
Now, the case is back at the district court level, where a judge will soon be asked to consider summary judgment motions. Without experts, there's probably no hope by Bieber and Usher to avoid seeing trial. And if it gets to one — set for October — Bieber and Usher might be considered underdogs if they can't have musicologists and damage experts take the witness stand to rebut what the plaintiff and his experts are saying.
In the emergency motion, Bieber's lawyers attempt to explain the failure to meet the March 21 deadline. According to their papers, musicologist Lawrence Ferrara advised them of commitments to other cases (including the Led Zeppelin "Stairway to Heaven" copyright case) that would make the deadline not feasible. They reached out to the other side for an extension. They got it — at least from the plaintiff. They say that if an extension was refused, they would have hired another musicologist. But they had no reason to expect the judge to do what she did.
Now, they are looking to stave off what they say would be a "draconian" penalty.
According to the brief, "It would constitute 'manifest injustice' to preclude Defendants from serving expert reports and presenting expert testimony — especially the opinion testimony from a musicologist with unparalleled credentials, whose expertise is necessary to enable the trier of fact to accurately assess the similarity (or lack thereof) between the parties’ musical compositions."
All things considered, Bieber will probably save his experts. But mark October on the calendar. It appears the judge is ready to roll after three years in court.