Devin Copeland v. Justin Bieber , 789 F.3d 484 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1427
DEVIN COPELAND, a/k/a De Rico; MAREIO OVERTON,
Plaintiffs - Appellants,
v.
JUSTIN BIEBER; USHER RAYMOND, IV, a/k/a Usher; HEATHER
BRIGHT, individually, and d/b/a B−Rhaka Publishing; RAY
ROMULUS, a/k/a Rayro, individually and d/b/a Please Enjoy
the Music; JONATHAN YIP, individually and d/b/a Products of
the Street; JEREMY REEVES, individually and d/b/a Sumphu;
UNIVERSAL MUSIC CORPORATION; UNIVERSAL MUSIC PUBLISHING
GROUP; SONY/ATV MUSIC PUBLISHING, LLC; WB MUSIC
CORPORATION; THE ISLAND DEF JAM MUSIC GROUP; STAGE THREE
MUSIC (U.S.) INC.; STAGE THREE MUSIC, LLC; JONETTA PATTON,
d/b/a J Pat Management,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Arenda L. Wright Allen,
District Judge. (2:13-cv-00246-AWA-TEM)
Argued: March 24, 2015 Decided: June 18, 2015
Before WYNN, FLOYD, and HARRIS, Circuit Judges.
Vacated and remanded by published opinion. Judge Harris wrote
the opinion, in which Judge Wynn and Judge Floyd joined.
ARGUED: Duncan Glover Byers, BYERS LAW GROUP, Norfolk,
Virginia, for Appellants. Stephen Edward Noona, KAUFMAN &
CANOLES, P.C., Norfolk, Virginia; Jonathan David Davis, JONATHAN
D. DAVIS, P.C., New York, New York, for Appellees. ON BRIEF:
Howard Weitzman, Jeremiah T. Reynolds, KINSELLA WEITZMAN ISER
KUMP & ALDISERT, Santa Monica, California, for Justin Bieber.
Nathan Muyskens, Washington, D.C., Barry I. Slotnick, Cheng L.
Chen, LOEB & LOEB LLP, New York, New York, for Heather Bright,
d/b/a B-Rhaka Publishing, WB Music Corporation, and Sony/ATV
Music Publishing, LLC.
2
PAMELA HARRIS, Circuit Judge:
Musician Devin Copeland (“Copeland”), together with his
songwriting partner, appeals the dismissal of his copyright
infringement claim against recording artists Justin Bieber and
Usher Raymond IV. Copeland alleges that three recorded songs by
the defendants, each titled “Somebody to Love,” infringe upon
his copyright over his own, earlier song of the same name. The
district court granted the defendants’ motions to dismiss on the
ground that no reasonable jury could find Copeland’s song and
the defendants’ songs sufficiently similar to give rise to
liability for infringement. We disagree, and therefore vacate
the district court’s order and remand the case for further
proceedings.
I.
A.
Because Copeland appeals from an order granting a motion to
dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, we recount the facts as alleged by Copeland,
accepting them as true for purposes of this appeal. See Jackson
v. Lightsey, 775 F.3d 170, 173 (4th Cir. 2014).
Copeland is a Virginia-based R&B singer and songwriter who
performs under the name “De Rico.” In 2008, together with his
songwriting partner Mareio Overton, Copeland began writing and
3
recording songs to perform on his upcoming album, My Story II.
Among them was “Somebody to Love,” the song that is the subject
matter of this case (the “Copeland song”). Copeland registered
a copyright for the My Story II songs, including “Somebody to
Love,” later that year.
In late 2009, Copeland entered into discussions with
Sangreel Media (“Sangreel”), a company that recruits artists for
record labels including Island Records, Sony Music, and RCA
Records. Sangreel was interested in promoting Copeland’s music,
and Copeland turned over copies of My Story II so that Sangreel
could provide promotional copies to its clients. Among the
figures to whom Sangreel presented Copeland’s music was Usher
Raymond IV, a world-famous recording artist who performs under
the name “Usher.”
According to Copeland’s complaint, Usher liked what he
heard. Usher’s mother and manager, Jonetta Patton (“Patton”),
scheduled a conference call with Copeland, during which she
informed Copeland that both she and Usher had listened to My
Story II, and that they were interested in having Copeland re-
record the album and join Usher on tour. Yet the plans never
materialized, and that was the last Copeland heard from anyone
in Usher’s camp.
Within a few months of Copeland’s phone conversation with
Patton, however, Usher had recorded and posted on his YouTube
4
channel a demo song also titled “Somebody to Love” (the “Usher
demo song”). Usher did not commercially release this song, but
instead allegedly brought it to his protégé and fellow recording
artist, Justin Bieber (“Bieber”). Bieber recorded his own
“Somebody to Love” (the “Bieber album song”) and released it on
his debut album, My World 2.0, in the spring of 2010. Bieber’s
“Somebody to Love” was a hit, peaking at number 15 on the U.S.
Billboard Hot 100 chart. Finally, Bieber released a fourth and
final “Somebody to Love,” a remix with lead vocals by both
himself and Usher (the “Bieber-Usher remix song”) in June 2010.
Bieber has continued to perform live versions of those songs
while on tour.
B.
Alleging that Bieber and Usher had access to the Copeland
song via Sangreel and that their songs bear a striking
resemblance to his own work, Copeland filed suit for copyright
infringement against Bieber, Usher, and other associated
defendants (collectively, “Bieber and Usher”). Bieber and Usher
moved to dismiss the action under Rule 12(b)(6), contending, as
relevant here, that no reasonable jury could find that the
Copeland song and the Bieber and Usher songs were “substantially
similar,” as required to make out an infringement claim.
After a hearing, the district court agreed with Bieber and
Usher, and entered an order granting their motions to dismiss.
5
The court applied our precedent requiring copyright plaintiffs
to prove two distinct forms of similarity: “extrinsic”
similarity, an objective match between the copyright-protectable
elements of an original work and a purported copy, often based
on expert testimony; and “intrinsic” similarity, a more
subjective and “essentially aesthetic judgment” as to whether
the intended audience of two works would experience them as
similar in overall effect. While acknowledging that substantial
similarity is “largely a matter of fact,” J.A. 249, the district
court understood our precedent to allow for dismissal on the
pleadings under either prong where no reasonable jury could find
substantial similarity of the requisite kind.
The court began its analysis with intrinsic similarity, and
the overall appeal of the two works to their intended audience.
Relying again on Fourth Circuit precedent, the court held that
the relevant “intended audience” in this case is the general
public, as the expected ultimate market for Copeland’s song.
And the general public, the court concluded, would not “construe
the aesthetic appeal of the songs as being similar,” for despite
some shared elements, the “mood, tone, and subject matter” of
the songs differ “significantly.” J.A. 253-54. Having decided
that no reasonable jury could find the songs substantially
similar under the intrinsic prong, the district court granted
6
defendants’ motions to dismiss without reaching extrinsic
similarity. This appeal followed.
II.
To establish a claim for copyright infringement under the
Copyright Act of 1976, 17 U.S.C. § 101 et seq., a plaintiff must
prove that it possesses a valid copyright and that the defendant
copied elements of its work that are original and
protectable. See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
499 U.S. 340, 361 (1991); Universal Furniture Int’l, Inc., v.
Collezione Europa USA, Inc., 618 F.3d 417, 435 (4th Cir. 2010).
Absent direct proof of copying, which is hard to come by, a
plaintiff may prove copying indirectly, with evidence showing
that the defendant had access to the copyrighted work and that
the purported copy is “substantially similar” to the
original. See Universal Furniture, 618 F.3d at 435. It is that
final step in the analysis that is at issue here. Bieber and
Usher do not challenge Copeland’s copyright in his song nor
their access to that song. Instead, this case turns on whether
Copeland can show the “substantial similarity” that would give
rise, together with undisputed access, to a presumption that
Bieber and Usher copied his song.
We begin by laying out the standard under which we consider
that question, and addressing Copeland’s arguments for changes
7
or refinements to that standard. As the district court
correctly explained, in this circuit, a plaintiff’s substantial
similarity showing has two components: extrinsic and intrinsic
similarity. And while both bear, obviously, on the likeness
between a copyrighted work and a supposed copy, they are
different in important ways.
The “extrinsic inquiry is an objective one,” looking to
specific and “external criteria” of substantial similarity
between the original elements (and only the original elements)
of a protected work and an alleged copy. Id. at 435-
36; see also Dawson v. Hinshaw Music, Inc., 905 F.2d 731, 732-33
(4th Cir. 1990). Because the inquiry is objective, expert
testimony often will be relevant. Universal Furniture, 618 F.3d
at 435. And because it is focused only on the original elements
of the copyrighted work, a court examining extrinsic similarity
must first engage in a process we sometimes call “analytic
dissection,” separating out those parts of the work that are
original and protected from those that are not. See id. at
436-37.
Intrinsic similarity, by contrast, is a subjective inquiry
that centers on the impressions of a work’s “intended audience,”
usually the general public. See Lyons P’ship, L.P. v. Morris
Costumes, 243 F.3d 789, 801 (4th Cir. 2001). So under the
intrinsic prong, we analyze works as cohesive wholes, without
8
distinguishing between protected and unprotected elements, just
as the works’ intended audiences likely would encounter them in
the marketplace. See Universal Furniture, 618 F.3d at 437. We
often have described intrinsic similarity as measuring the
“total concept and feel” of the works in question. Id. at
436; Lyons, 243 F.3d at 801.
Copeland asks us to modify this approach in two respects.
First, pointing to Ninth Circuit case law, see Apple Computer,
Inc. v. Microsoft Corp., 35 F.3d 1435, 1442-43 (9th Cir. 1994),
Copeland suggests that we revisit our precedent and insist that
comparison under the intrinsic prong, as well as the extrinsic,
be confined to original elements and preceded by analytic
dissection. We can put to one side whether the Ninth Circuit
actually has adopted the rule that Copeland endorses, because
our court has held just the opposite: In Universal Furniture,
we joined the Second and Eighth Circuits in finding expressly
that analytic dissection is inapplicable to the intrinsic
analysis, because a work’s intended audience “does not make
th[e] distinction” between protectable and unprotectable
elements and instead encounters a work “as one object.” 618
F.3d at 437.
Even if we were free to reconsider that holding, Copeland
has offered no compelling reason to do so. Indeed, as Bieber
and Usher point out, our rule, allowing for comparison of entire
9
works under the intrinsic prong, generally advantages rather
than disadvantages copyright plaintiffs like Copeland, by
broadening the grounds upon which a court may find intrinsic
similarity. The district court committed no error by declining
to engage in analytic dissection before conducting its inquiry
into intrinsic similarity.
Second, Copeland urges us to adopt the rule from Shaw v.
Lindheim, 919 F.2d 1353 (9th Cir. 1990), under which intrinsic
similarity is a question reserved for the trier of fact, and
only the extrinsic similarity prong can be grounds for dismissal
at the summary judgment and pleading stages. Because the
intrinsic similarity inquiry turns on an inherently subjective
appreciation of a work’s tone and feel, Copeland argues, it is
unfair to resolve it as a matter of law, with one judge’s
personal opinion trumping what could be overwhelming expert
evidence showing the substantial similarity of two songs under
the extrinsic prong.
We have not squarely addressed whether a district court may
grant an infringement defendant’s motion to dismiss, or motion
for summary judgment, under the intrinsic prong alone. 1 Nor have
1
By contrast, we have indicated that a district court may
grant a motion to dismiss or summary judgment under the
extrinsic prong alone. See Universal Furniture, 618 F.3d at 436
(“A court may grant summary judgment for defendant as a matter
of law if the similarity between the two works concerns only
10
we analyzed the precise scope of the Shaw rule in the Ninth
Circuit, or decided whether to adopt it in our own. We need not
resolve those issues today, however, because in our view, even
assuming that a motion to dismiss may be granted on the ground
that no reasonable jury could find intrinsic similarity, the
district court erred in doing so here. It is to that question
that we now turn.
III.
This court reviews de novo a district court’s decision to
grant a motion to dismiss under Rule 12(b)(6), see Jackson, 775
F.3d at 177–78, and also conducts de novo the analysis of
whether works are substantially similar, see Peters v. West, 692
F.3d 629, 632 (7th Cir. 2012). Like the district court, we may
examine all four of the songs at issue at the pleading stage,
because all were “integral to and explicitly relied on in the
complaint” and because Bieber and Usher “do not challenge
[their] authenticity.” Phillips v. LCI Int’l, Inc., 190 F.3d
609, 618 (4th Cir. 1999).
A.
noncopyrightable elements of the plaintiff’s work.” (quoting
Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1257 (11th Cir.
1999))); see also Lyons, 243 F.3d at 803 (court decides as a
“matter of law” whether extrinsic similarity exists).
11
As noted above, intrinsic similarity is assessed from the
perspective of a work’s intended audience. See Universal
Furniture, 618 F.3d at 435. That means that the first step in
undertaking an analysis of intrinsic similarity is identifying
the right audience. The district court concluded that the
general public was the intended audience for the Copeland song,
and we agree.
In Dawson, we clarified our intrinsic similarity analysis
by introducing the “intended audience” formulation. Because a
primary purpose of copyright law is to “protect[] a creator’s
market,” we reasoned, the intrinsic similarity inquiry should be
keyed to the impressions of the intended audience for a
creator’s work — the impressions that count for purposes of
marketability. 905 F.2d at 734. So where the market for a
given work consists of a discrete and specialized class, the
reactions of a generic ordinary observer will not be
particularly relevant. See id. But in most cases, we
cautioned, the general public is in fact the intended audience,
and “a court should be hesitant” to find otherwise. Id. at
737; see Lyons, 243 F.3d at 801.
Copeland argues that this case is the exception to the
ordinary rule. According to Copeland, the intended audience for
his song was not the general public but instead the “industry
professionals” to whom he distributed his song by way of
12
Sangreel. The “market” Copeland was trying to reach, in other
words, was the Ushers of the world, and Copeland would be harmed
if industry professionals believed his song was substantially
similar to those of the defendants even if the general public
saw no resemblance.
Like the district court, we are unpersuaded. It may be
that Copeland intended to promote his music directly to industry
professionals. But “[i]f . . . industry professionals reject
[Copeland’s] song because it is too similar to the [d]efendants’
songs, it would be because those companies fear that the public
will find the songs to be overly similar.” J.A. 252 (emphasis
in original). There is a reason that the Dawson formulation
uses the word “audience,” rather than “buyer” or “recipient”:
Ultimate marketability is not always determined by the
impressions of a first-hand purchaser or recipient, but may
sometimes rest on the impressions of third parties — the work’s
actual “audience” — whose preferences the buyer or recipient has
in mind when acquiring the work.
Our decision in Lyons illustrates the point. There, we
considered whether the intended audience for a purple dinosaur
costume resembling the character “Barney” from the television
series Barney & Friends was the adult performers who would buy
the costumes or the young children they sought to entertain.
243 F.3d at 802. We concluded that it was the children’s
13
reactions that mattered to the intrinsic similarity inquiry,
because even though they were not themselves the intended
purchasers of the costumes, it was their impressions (or
misimpressions) that could lead adults to buy the infringing
costumes. Id. at 802–03. Adults might discern differences
between the two costumes, but if children could not, then there
would be no reason for adults to insist on the original — with
the result that the “knock-off” costumes would cut into Barney’s
market and the profits of Barney’s owner. Id. at 803. The same
reasoning applies here. Though industry professionals may have
been the intended direct recipients of Copeland’s music, the
impressions that matter are those of the general public that
constitutes the market for popular music — because, as Copeland
admits, J.A. 252, those are the impressions that industry
professionals would have in mind in choosing whether to do
business with Copeland.
Again, this should come as no surprise. When we left open
in Dawson the possibility that the intended audience for a
choral arrangement of a spiritual song was more specialized than
the general public and might be limited to choral directors, we
also made clear that we were crafting a narrow rule for
exceptional circumstances. We specifically distinguished the
subject matter there from popular music, for which we noted
approvingly that courts “routinely” apply the lay observer
14
test. Dawson, 905 F.2d at 737. That is because the intended
audience for popular music is usually an ordinary listener or,
put differently, the general public. And indeed, the entire
premise of Copeland’s case is that his song is substantially
similar to one that appears on a multi-platinum album by one of
the world’s most recognizable popular music stars. This is not
a case about niche audience appeal, and there is no reason to
think of the “intended audience” as anything other than the
general public.
B.
Finally, we come to the question at the heart of this case:
Whether the songs at issue, assessed from the perspective of the
intended audience — here, the general public — and taking into
account their “total concept and feel,” Lyons, 243 F.3d at 801,
are sufficiently intrinsically similar to give rise to a valid
infringement claim. The district court answered in the
negative, holding that no reasonable jury could find the
requisite intrinsic similarity. But under the applicable de
novo standard of review, see Peters, 692 F.3d at 632, we must
listen for ourselves and come to our own conclusion. And
because the general public typically encounters popular music
songs by hearing them from start to finish, we undertake that
analysis by listening to the songs in their entirety and side by
15
side, to determine whether a reasonable jury could find that
they are subjectively similar.
1.
As a preliminary matter, we should clarify that the “songs”
to which we refer include all three of the defendants’ versions
of “Somebody to Love”: the Usher demo version, the Bieber album
version, and the Bieber-Usher remix version. At oral argument,
Copeland suggested that each of those songs must be considered
individually, and separately compared to the Copeland song. We
disagree. In our view, the defendants’ three songs are
sufficiently similar to each other that they may be grouped
together, and the same intrinsic analysis applied to all. If
any one of them fails to meet the threshold for intrinsic
similarity, then all of them do.
The Bieber album song and the Bieber-Usher remix are to our
ears identical; the only difference we can hear is that Bieber
is the only singer featured on the album song, whereas Usher
provides lead vocals in the second verse and backing vocals
elsewhere on the remix. On the Usher demo song, Usher is the
only singer featured, and that song is in a different key than
the others, presumably to accommodate his different vocal range.
But the Usher demo song is otherwise in lock-step with the
others down to minor details — everything from the lead singer’s
exclamation of “oh” in the introductory section to the
16
distinctive synthesizer chords in the verses and the bass line
in the pre-chorus. 2 By the unscientific intrinsic standard, the
three Bieber and Usher songs are not just substantially similar
to one another; they are the same.
2.
We turn now to a comparison of the Copeland song with,
collectively, the three Bieber and Usher songs. The district
court acknowledged that the Usher and Bieber songs “have some
elements in common” with the Copeland song. J.A. 253. But for
the district court, what was dispositive was a significant
difference in the overall “aesthetic appeal” of the respective
songs. J.A. 254. We cannot agree. 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.
First, if by “mood” and “tone” the district court meant
genre, then we agree with this much: The Copeland song belongs
to a different genre than the three Bieber and Usher songs.
2
More specifically, the synthesizer chords in the three
songs share a distinctive “gated” effect: Instead of
maintaining a steady tone, the chords sharply fade in and out in
a stabbing, off-beat fashion. And in all three songs, the pre-
chorus and chorus bass line follows an “octave” pattern,
repeating the same note (e.g., a C or a B-flat) but jumping up
and down a full scale, which lends a forward-moving, propulsive
effect to the music.
17
Though all fall under the same broad umbrella of popular music,
the Copeland song is squarely within the R&B subgenre, while the
Bieber and Usher songs would be labeled dance pop, perhaps with
hints of electronica. Indeed, that difference is striking upon
first listen, and at least as a linguistic matter, the very fact
of these different genres might be thought to make the songs
different in “concept and feel,” Lyons, 243 F.3d at 801, or, in
the words of the district court, in “aesthetic appeal,” J.A.
254.
But as Bieber’s counsel conceded at oral argument, while
genre may be relevant to intrinsic analysis of musical works, it
cannot be dispositive under copyright law. 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. From Copeland’s perspective, it may be true that
the “aesthetic appeal” of an R&B song is different, in some
sense, than that of a dance pop song — but if there is going to
be a dance pop version of his R&B “Somebody to Love,” then it is
his to record or to license, so that he can reap the full return
on his creative efforts. Cf. Castle Rock Entm’t, Inc. v. Carol
Pub. Grp., Inc., 150 F.3d 132, 140 (2d Cir. 1998) (“total
18
concept and feel” analysis must take account of fact that works
from different genres “must necessarily have a different concept
and feel”). And by the same token, of course, were we to put
too much stock in identity of genre at the intrinsic stage, we
would risk deeming each successive work in a genre — whether it
be R&B, ragtime, or bossa nova — an appropriation of the same-
genre works that came before it.
Second, we do not doubt that the songs at issue here are in
many respects dissimilar. And if substantial similarity were a
purely quantitative inquiry, asking only whether the majority of
the works in question overlapped, we would agree with the
district court that no reasonable jury could find the requisite
intrinsic similarity. For instance, while the Copeland song
concludes with a repeated instrumental figure, the Bieber and
Usher songs end more abruptly, after ad-libbed vocal lines. The
Bieber and Usher songs include a post-chorus interval, with the
lyric “I-I need somebody” sung in a syncopated manner, that has
no equivalent in the Copeland song. And perhaps most
significantly, the songs’ verses feature different vocal
melodies and beats 3 as well as different lyrical content, with
3
The Copeland verses feature a hectic R&B beat, with a
shaker and a busy eighth-note pattern on the bass drum. The
musical accompaniment in those verses is two chords played in a
backbeat, with a whimsical sound reminiscent of a circus organ.
Both differ significantly from the sparser beats and regimented
19
the Copeland verses lamenting the end of a relationship gone
sour and the Bieber and Usher verses conveying the hope and
optimism of the start of a relationship with an unidentified
love interest. The district court may have had some or all of
these in mind when it referred to differences in “mood, tone,
and subject matter,” J.A. 253, and we agree that taken
numerically, the points of dissimilarity may well exceed the
points of similarity.
But what that analysis fails to account for, we think, is
the relative importance of these differences as compared to what
the songs reasonably could be heard to have in common: their
choruses. Even when quantitative majorities of two works bear
little resemblance, courts routinely permit a finding of
substantial similarity where the works share some especially
significant sequence of notes or lyrics. See Swirsky v. Carey,
376 F.3d 841, 851 (9th Cir. 2004) (overlap in first measure of
chorus — seven total notes — enough to make pop songs
substantially similar); Fisher v. Dees, 794 F.2d 432, 434 & n.2
(9th Cir. 1986) (similarity in first six measures of songs,
amounting to twenty-nine seconds on a forty-minute album, enough
to constitute appropriation of album); Elsmere Music, Inc. v.
three-chord progression of the verses in the Bieber and Usher
songs.
20
Nat’l Broad. Co., 482 F. Supp. 741, 744 (S.D.N.Y.), aff’d, 623
F.2d 252 (2d Cir. 1980) (four-note phrase accompanying lyrics “I
love New York” protectable because it is “the heart of the
composition”); Santrayll v. Burrell, No. 91 Civ. 3166, 1996 WL
134803, at *1–2 (S.D.N.Y. Mar. 25, 1996) (repetition of the
phrase “uh-oh” four times in a distinctive rhythm for one
measure is protectable). And we think it is clear that when it
comes to popular music, a song’s chorus may be the kind of key
sequence that can give rise to intrinsic similarity, even when
works differ in other respects.
It is the chorus — often termed the “hook,” in recognition
of its power to keep a listener coming back for more — that many
listeners will recognize immediately or hear in their minds when
a song title is mentioned. As the part of a song that is most
often repeated and remembered, a chorus hook is important not
only aesthetically but also commercially, where it may be
central to a song’s economic success. See, e.g., Gary Burns, A
Typology of ‘Hooks’ in Popular Records, 6 Popular Music 1 (1987)
(cataloging characteristics and definitions of term “hook,” and
noting that “the hook is ‘what you’re selling’” and that hooks
are “the foundation of commercial songwriting, particularly hit-
single writing”). From “Respect” by Aretha Franklin to “Seven
Nation Army” by the White Stripes, the choruses or hooks of
popular music songs are often disproportionately significant,
21
relative to the amount of time or number of measures they
occupy. See id. at 1 (“[V]irtually no hit record is without a
bit of music or words so compelling that it worms its way into
one’s memory and won’t go away.”).
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. The most
obvious similarity, of course, is the shared chorus lyric,
mirrored in the songs’ titles: “I [] need somebody to love.”
As Bieber and Usher point out, this phrase is common in popular
music, appearing most famously in songs also titled “Somebody to
Love” by psychedelic-rock band Jefferson Airplane and arena-rock
band Queen, and common lyrical phrases generally are not
copyrightable, see Peters, 692 F.3d at 635–36 (discussing rap
songs’ use of the maxim “what does not kill me, makes me
stronger”). That might preclude consideration of this
similarity under the extrinsic prong, where analysis is preceded
by analytic dissection to determine which portions of a work are
protectable. But as Bieber and Usher concede, under the
intrinsic prong, we do not engage in analytic dissection.
Instead, we examine the chorus’s lyrics together with the
accompanying music, taking the works in their entirety, as an
ordinary musical listener would.
22
And when we listen to the choruses that way, and in the
context of the entire songs, we hear the kind of meaningful
overlap on which a reasonable jury could rest a finding of
substantial similarity. It is not simply that both choruses
contain the lyric “somebody to love”; it is that the lyric is
delivered in what seems to be an almost identical rhythm and a
strikingly similar melody. To us, it sounds as though there are
a couple of points in the respective chorus melodies where the
Bieber and Usher songs go up a note and the Copeland song goes
down a note, or vice versa. In our view, however, a reasonable
jury could find that these small variations would not prevent a
member of the general public from hearing substantial
similarity. 4
We also conclude that the choruses of the Copeland song and
the Bieber and Usher songs are sufficiently important to the
songs’ overall effect that they may be the basis for a finding
4
In this respect, comparison with the Jefferson Airplane
and Queen songs cited by Bieber and Usher undermines rather than
supports their position. To the lay listeners of this panel,
the Copeland and Bieber and Usher choruses are much more similar
to each other in “total concept and feel” than they are to the
refrains of those classic rock‘nʹroll songs. Because courts
have often taken judicial notice of such well-known songs, see,
e.g., ZZ Top v. Chrysler Corp., 54 F. Supp. 2d 983, 986 n.6
(W.D. Wash. 1999); Testa v. Janssen, 482 F. Supp. 1195, 1199 n.3
(W.D. Pa. 1980), we may consider them for purposes of this
comparison, though we emphasize that our holding today rests on
our analysis of the Copeland song and the Bieber and Usher songs
alone.
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of intrinsic similarity. In both the Copeland song and the
Bieber and Usher songs, the singing of the titular lyric is an
anthemic, sing-along moment, delivered at a high volume and
pitch. Quite simply, it is “the heart of the
composition[s],” Elsmere Music, 482 F. Supp. at 744, the most
prominent and memorable part of the songs, and just the sort of
significant sequence that courts have found sufficient to render
musical works substantially similar. Whether a member of the
general public could experience these songs primarily through
their choruses and thus find them substantially similar,
notwithstanding the differences catalogued above, is in our view
a close enough question that it cannot be disposed of as a
matter of law and should instead be decided by a jury.
IV.
In summary, we hold that a reasonable jury could find that
the Copeland song and the Bieber and Usher songs are
intrinsically similar. Because our holding is sufficient to
dispose of this appeal, we decline to reach Copeland’s other
arguments. For the reasons set forth above, we vacate the
judgment of the district court and remand the case for further
proceedings.
VACATED AND REMANDED
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