A federal appeals court on Thursday revived a copyright infringement lawsuit against Justin Bieber and Usher, marking the latest in a string of high-profile decisions attempting to clarify the nebulous difference between homage and theft in the music industry.
A three-judge panel of the 4th Circuit of the U.S. Court of Appeals unanimously ruled that there is sufficient reason to allow a jury to consider whether “Somebody to Love,” a 2010 chart-topper from the two pop icons, bears too much resemblance to an earlier song of the same name recorded by two Virginia musicians, Devin Copeland and Mareio Overton.
“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 wrote for the court.
The case will now be sent to a lower federal court, where it was dismissed more than a year ago on grounds that no reasonable jury would conclude copyright infringement had occurred. But Harris said that the lower court erred by leaning too heavily on the differences between music genres and not enough on technical specifics of the songs, such as chord and beat similarities.
“In our view, that analysis attaches too much weight to what the district court termed a difference in ‘mood’ and ‘tone,’ and too little to similarities between the “element” of the songs — their choruses — that is most important,” Harris wrote. She added that “a reasonable jury could find that these small variations would not prevent a member of the general public from hearing substantial similarity.”
The appeals court decision comes just months after a federal jury ruled that Robin Thicke and Pharrell’s 2013 hit “Blurred Lines” infringed on Marvin Gaye’s 1977 song “Got to Give It Up.” The jury in that case awarded more than $7 million in damages to Gaye’s family — one of the largest damages awards in the history of music copyright cases.
The challenge against Bieber and Usher could be settled out of court and may not ultimately require a jury to weigh in. In January of this year, Sam Smith settled out of court with Tom Petty, who said the British singer’s “Stay With Me” ballad bore too much resemblance to his 1989 hit “I Won’t Back Down.”
The recording industry has stepped up its lobbying of Congress over the past couple years as part of a concerted effort to push for copyright and music-licensing reform. Most of the issues being advocated by the Recording Academy and others involve the murkiness surrounding digital radio, such as lower royalty rates for Internet streaming services and a loophole that grants fewer copyright protections for songs recorded before 1972. But the efforts also reflect the complexities of dated music copyright rules.
House Judiciary Chairman Bob Goodlatte last year began an extensive review of the copyright landscape, which has not undergone major revisions since 1976.
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