Court Revives Copyright Lawsuit Against Justin Bieber and Usher

Are the courts cracking down more aggressively now on music copyright infringement?

Simpler times: Usher and Justin Bieber dancing in their music video for "Somebody to Love" in 2010.
National Journal
Dustin Volz
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Dustin Volz
June 18, 2015, 11:47 a.m.

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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