By Amanda Whorton
On June 18, 2015, the Fourth Circuit issued a published opinion in the civil case Copeland v. Bieber. The court held that, in a copyright infringement claim under the Copyright Act of 1976, a reasonable jury could find that the plaintiff and defendant’s songs are intrinsically similar.
Copeland and Bieber’s “Somebody to Love” Songs
In 2008, musician Devin Copeland (“Copeland”) and his songwriting partner wrote and recorded a song called “Somebody to Love.” He registered the copyright for the song later that year. In 2009, Copeland, in promoting his music, turned over copies of his song to Sangreel Media, a company that recruits artists for record labels. Sangreel Media showed Copeland’s music to Usher Raymond IV (“Usher”), among others. Usher’s manager and mom called Copeland, informing him that Usher liked the song and was interested in Copeland joining Usher on tour and re-recording the song. However, nothing materialized and Copeland never had any communication with Usher or his mom thereafter.
A few months later, Usher recorded and posted to YouTube a song also called “Somebody to Love.” Usher brought this song to his protégé, Justin Bieber (“Bieber”), and Bieber recorded and released the song himself. Usher and Bieber released a remix of the song together in 2010.
Copeland then filed suit for copyright infringement against Bieber and Usher. Bieber and Usher moved to dismiss the action under Federal Rules of Civil Procedure 12(b)(6) for failure to state a claim, arguing that no reasonable jury could find that the Copeland “Somebody to Love” and the Bieber and Usher “Somebody to Love” songs were “substantially similar.” The district court granted Bieber and Usher’s motion to dismiss, stating that the mood, tone, and subject matter of the songs were significantly different. Copeland appealed.
A Plaintiff Must Show That the Songs are “Substantially Similar” in Order to Prove a Copyright Infringement Claim
Under the Copyright Act of 1976, in order to establish copyright infringement, a plaintiff must prove that he or she has a valid copyright and that the defendant copied original and protectable elements of his or her work. While it is difficult to directly prove that the defendant copied the work, a plaintiff can use indirect proof to show that the defendant had access to the original work and that the copy is “substantially similar” to the original work.
Plaintiffs must prove both “extrinsic” and “intrinsic” similarity. “Extrinsic” similarity is an objective question and evaluates the copyright-protectable elements of the original work and the copy. Expert testimony is often used in this assessment. On the other hand, “intrinsic” similarity is a subjective and “aesthetic judgment,” looking instead to whether the intended audience of both works would see them as similar.
Bieber and Usher did not dispute that they had access to Copeland’s song, but rather that the songs were “substantially similar.”
Upon an Examination of the Lyrics, an Audience Could Determine That the Songs are “Substantially Similar”
The Fourth Circuit first determined that the intended audience of the works was the general public, as the general public is typically the consumer of popular music. Next, the Fourth Circuit listened to both the Bieber and Usher songs and the Copeland song for their differences and similarities.
The court reasoned that many aspects of the songs were different. The genres of both works were different: Copeland’s song was R&B and the Bieber and Usher songs were dance pop. However, genre is not dispositive. The songs also featured different beats, melodies, and lyrical content.
The Fourth Circuit reasoned that even though the points of dissimilarity may outweigh the points of similarity, other courts have found “substantial similarity” where the works share some of the same sequence of notes or lyrics. The court then focused mainly on the choruses of the songs. The choruses not only both contained the lyric “somebody to love,” but they were delivered in a similar rhythm and melody. This was enough of a basis for the court to view that the songs could have a similar overall effect on an ordinary audience.
Fourth Circuit Vacates and Remands
The Fourth Circuit vacated the district court’s judgment and remanded the case for further proceedings. The Fourth Circuit did not need to reach the question of whether the works were extrinsically similar, concluding that a reasonable jury could find that Bieber and Usher’s songs are intrinsically similar to Copeland’s song.
