On June 18th, 2015 the Fourth Circuit revived a previously dismissed copyright infringement action against recording artists Justin Bieber and Usher Raymond IV. In a 3 – 0 decision, the court found in favor of plaintiff-appellants on grounds that a reasonable jury could have found plaintiff’s and defendants’ songs intrinsically similar.
The subject of the case is a song titled “Somebody to Love”. Written and performed by Virginia R&B artist Devin Copeland and Mareio Overton in 2008. Copeland subsequently registered a copyright for this song under the album title “My Story II”.
In late 2009, Copeland entered into discussions with Sangreels Media regarding promotion of the My Story II album. Among Snagreels’ clients that sampled Copeland’s song was Usher Raymond IV. Usher recorded samples based on Copeland’s “Somebody to love”. He never commercially released these samples. Instead, he forwarded Copeland’s song to his protégé, Justin Bieber. Based on Usher’s sample, Bieber recorded his own version of “Somebody to Love” and released it in his debut album, My World 2.0, in spring of 2010. Beiber’s “Somebody to Love” peaked at number 15 on the U.S. Billboard Hot 100 Chart.
In an infringement suit, the copyright plaintiff bears the burden of proving two forms of similarity: Extrinsic and intrinsic. Extrinsic similarity denotes an “objective match between the copyright-protectable elements of an original work and a purported copy”. Intrinsic similarity is a subjective judgment on essential aesthetic of the works, which asks whether the intended audience of two works would experience them as “similar in overall effect”. Failure to establish either warrants dismissal of plaintiff’s complaint.
Based on these standards, the district court dismissed Copeland’s complaint. Despite the songs share some similarity, the “mood, tone, and subject matter” of the songs differ “significantly”. This is to say, the two songs are of different genres and this fact alone is distinct enough to dissolve intrinsic similarity. This is also the core issue, whether Copeland, Usher and Bieber’s songs are intrinsically similar.
To assess intrinsic similarity, the court first identified the intended audience. Intended audience’s impressions of a work is important because it effects a recording artist’s decision during a commercial release of a song. As such, the “intended audience” may not necessarily be the initial buyer or recipient of the original song. The court instead, “may rely on the impressions of third parties”. The Fourth Circuit found that in this case, the target audience is the general public because it is their impression that recording artists must keep in mind when releasing songs commercially.
The question then becomes whether Copeland’s, Usher’s and Bieber’s songs are intrinsically similar from general public’s view. The Fourth Circuit first grouped Usher’s demo with Bieber’s album release. Between the two songs, with exception of the higher pitch sang in Usher’s samples, the two are identical. The two share the same beats, melody, chorus, and style. Accordingly, the court condensed these two versions as if they were one.
Grouping the two songs together, the Fourth circuit then compared them collectively with Copeland’s song. Where the Fourth Circuit differed with the district court is that the former did not find difference in overall “aesthetic appeal” a dispositive factor in determining intrinsic similarity. Instead, the Fourth Circuit argued that although difference in genre accounts for some difference, it is the choruses of songs that are most important. The court reasoned that if genre alone is dispositive under copyright law, then “nothing would prevent someone form 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”. Specifically, the court found repetition of “somebody to love” and identical melodic rhythms between Copeland’s and Usher/Bieber versions of the song.
The court then disposed the notion that substantial intrinsic similarity is purely quantitative. Copeland’s song has different vocal melodies and beats as well as different lyrical content with the Usher/Bieber versions. While the Copeland verses weep of the end of a relationship, the Usher/Bieber verses convey optimism of the start of a relationship. Quantitatively, “points of dissimilarity may well exceed the points of similarity”. Instead, the court cites to precedent case law that states: “substantial similarity can be found where the works share some especially significant sequence of notes or lyrics”.
The chorus is important because it is usually the “hook” that keeps a listener coming back to the song. The same hook that listeners recognize or hear in their minds when a song title is mentioned. The court compared the Copeland and Usher/Bieber songs and concluded that the melodies in the two are the same. The most obvious, the court observed, is the shared chorus mirrored in the songs’ titles: “I need somebody to love”. Accordingly, the similarities in chorus here are sufficient for a finding of intrinsic similarity. This case is remanded to district court for further proceeding.
- Kai Y. Gao
Copeland v Bieber No. 14-1427 United States Court of Appeals for the Fourth Circuit.