Suit Against Bieber Next 'Blurred Lines' Case?

There's no certainty the case will go to trial. But if it does, the case will be the second time in a year that a jury has been asked to decide whether a hit pop song by an artist of Beiber's popularity infringed on another songwriter's copyright. In March 2015, a Los Angeles federal jury found that singer-songwriters Pharrell Williams and Robin Thicke's “Blurred Lines” copied elements of Marvin Gaye's 1977 hit “Got to Give It Up.” Williams and Thicke have been ordered to pay nearly $7.4 million to the late singer's family in litigation that continues.

Duncan Byers of the Byers Law Group in Norfolk, who argued for Copeland and his songwriting partner Mareio Overton, said “we are extremely pleased that the Fourth Circuit panel unanimously recognized the striking similarities between my clients' work and the copies. My clients are looking forward to vindicating their claims in a trial and are positive a jury will agree with the court of appeals.” Byers said there had been no settlement discussions in the case so far, but that his clients were open to an offer.

New York solo practitioner Jonathan Davis and Stephen Noona of Kaufman & Canoles in Norfolk, who argued for Bieber and Usher, did not immediately return a request for comment.

According to Copeland's complaint, his song “Somebody to Love” was on an album that made its way into Usher's hands through an artist recruiter. Copeland, whose stage name is “De Rico,” said that Usher's manager (his mother Jonetta Patton) told Copeland that she and Usher were interested in having Copeland re-record the song and join Usher on tour, but there was never any follow-up.

A few months later, according to court papers, Usher recorded a song called “Somebody to Love” and posted the video on YouTube. He didn't release it commercially, instead bringing it Bieber to record. Bieber's version reached No. 15 on the Billboard Hot 100 Chart. Bieber also recorded a remix of the song with Usher.

Copeland sued Bieber and Usher in May 2013 in the Eastern District of Virginia for copyright infringement. Copeland claimed the duo ripped off his “Somebody to Love,” pointing to similarities with the songs that Bieber and Usher released. Bieber and Usher successfully argued in the district court, however, that the case should be dismissed because no “reasonable” jury could find that the songs were “substantially similar.” Copeland then appealed.

To win under copyright law, Copeland had to prove both “extrinsic” and “intrinsic” similarities between the songs in dispute. Determining extrinsic similarity involves a technical analysis of musical compositions, while intrinsic similarity is more subjective, measuring similarities in the audience experience of listening to the music.

The district judge found Copeland's case failed the intrinsic similarity test and dismissed the suit without reaching the extrinsic prong. The Fourth Circuit rejected Copeland's objections to the legal framework that the district judge used to compare the songs, instead finding that the district judge was simply wrong to find that a reasonable jury couldn't find substantial similarities.

After listening to Copeland's and the defendants' songs in their entirety side-by-side to determine whether there were intrinsic similarities, the Fourth Circuit judges concluded that Copeland's song was a different genre than the Bieber and Usher versions, but that that wasn't enough to rule out copyright infringement. “For if a difference in genre were enough by itself to preclude intrinsic similarity, then nothing would prevent someone from 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,” Circuit Judge Pamela Harris wrote for the appeals court.

The Fourth Circuit panel said the district judge put too much weight on differences in the “aesthetic appeal” of the songs and not enough on similarities between the “element,” or chorus. In the choruses, the appeals court found “the kind of meaningful overlap on which a reasonable jury could rest a finding of substantial similarity.” The lyric “somebody to love” was “delivered in what seems to be an almost identical rhythm and a strikingly similar melody,” Judge Harris wrote.

Circuit Judges James Wynn Jr. and Henry Floyd also heard the case.

Zoe Tillman is a Reporter with The National Law Journal, an ALM affiliate of Entertainment Law & Finance.

Pop star Justin Bieber should face the music ' or, more specifically, a jury ' on claims that his hit song “Somebody to Love” infringed on copyrighted material. The U.S. Court of Appeals for the Fourth Circuit has revived the case, more than a year after Bieber's lawyers got the suit dismissed by the U.S. District Court for the Eastern District of Virginia. A three-judge appellate panel found that Bieber and recording artist Usher's versions of the song had enough in common with an earlier song of the same name by musician Devin Copeland and his songwriting partner to send the dispute to a jury. Copeland v. Bieber, 14-1427.

“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,” Judge Pamela Harris of the Fourth Circuit wrote.

The judges delved into the nuances of song composition, finding “meaningful overlap” between the choruses of the different versions of “Somebody to Love.” The panel peppered its opinion with pop culture references, from the Beatles and Aretha Franklin to the White Stripes.

There's no certainty the case will go to trial. But if it does, the case will be the second time in a year that a jury has been asked to decide whether a hit pop song by an artist of Beiber's popularity infringed on another songwriter's copyright. In March 2015, a Los Angeles federal jury found that singer-songwriters Pharrell Williams and Robin Thicke's “Blurred Lines” copied elements of Marvin Gaye's 1977 hit “Got to Give It Up.” Williams and Thicke have been ordered to pay nearly $7.4 million to the late singer's family in litigation that continues.

Duncan Byers of the Byers Law Group in Norfolk, who argued for Copeland and his songwriting partner Mareio Overton, said “we are extremely pleased that the Fourth Circuit panel unanimously recognized the striking similarities between my clients' work and the copies. My clients are looking forward to vindicating their claims in a trial and are positive a jury will agree with the court of appeals.” Byers said there had been no settlement discussions in the case so far, but that his clients were open to an offer.

New York solo practitioner Jonathan Davis and Stephen Noona of Kaufman & Canoles in Norfolk, who argued for Bieber and Usher, did not immediately return a request for comment.

According to Copeland's complaint, his song “Somebody to Love” was on an album that made its way into Usher's hands through an artist recruiter. Copeland, whose stage name is “De Rico,” said that Usher's manager (his mother Jonetta Patton) told Copeland that she and Usher were interested in having Copeland re-record the song and join Usher on tour, but there was never any follow-up.

A few months later, according to court papers, Usher recorded a song called “Somebody to Love” and posted the video on YouTube. He didn't release it commercially, instead bringing it Bieber to record. Bieber's version reached No. 15 on the Billboard Hot 100 Chart. Bieber also recorded a remix of the song with Usher.

Copeland sued Bieber and Usher in May 2013 in the Eastern District of Virginia for copyright infringement. Copeland claimed the duo ripped off his “Somebody to Love,” pointing to similarities with the songs that Bieber and Usher released. Bieber and Usher successfully argued in the district court, however, that the case should be dismissed because no “reasonable” jury could find that the songs were “substantially similar.” Copeland then appealed.

To win under copyright law, Copeland had to prove both “extrinsic” and “intrinsic” similarities between the songs in dispute. Determining extrinsic similarity involves a technical analysis of musical compositions, while intrinsic similarity is more subjective, measuring similarities in the audience experience of listening to the music.

The district judge found Copeland's case failed the intrinsic similarity test and dismissed the suit without reaching the extrinsic prong. The Fourth Circuit rejected Copeland's objections to the legal framework that the district judge used to compare the songs, instead finding that the district judge was simply wrong to find that a reasonable jury couldn't find substantial similarities.

After listening to Copeland's and the defendants' songs in their entirety side-by-side to determine whether there were intrinsic similarities, the Fourth Circuit judges concluded that Copeland's song was a different genre than the Bieber and Usher versions, but that that wasn't enough to rule out copyright infringement. “For if a difference in genre were enough by itself to preclude intrinsic similarity, then nothing would prevent someone from 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,” Circuit Judge Pamela Harris wrote for the appeals court.

The Fourth Circuit panel said the district judge put too much weight on differences in the “aesthetic appeal” of the songs and not enough on similarities between the “element,” or chorus. In the choruses, the appeals court found “the kind of meaningful overlap on which a reasonable jury could rest a finding of substantial similarity.” The lyric “somebody to love” was “delivered in what seems to be an almost identical rhythm and a strikingly similar melody,” Judge Harris wrote.

Circuit Judges James Wynn Jr. and Henry Floyd also heard the case.

Zoe Tillman is a Reporter with The National Law Journal, an ALM affiliate of Entertainment Law & Finance.