4th Circuit Revives Suit Against Usher and Bieber

     (CN) – There are enough similarities between Justin Bieber and Usher’s “Somebody to Love” and a song of a similar title by a Virginia-based R&B singer to potentially constitute copyright infringement, the Fourth Circuit ruled.
     The decision, announced Thursday, reversed an earlier ruling by U.S. District Judge Arenda Wright Allen, who ruled on March 28, 2014 that the songs were not intrinsically similar and dismissed the case with prejudice.
     Devon Copeland, also known by the stage name De Rico, and his songwriting partner Mareio Overton, sued Justin Bieber, Usher Raymond, Universal Music Corp. and others in May 2013, claiming that three versions of the song “Somebody to Love” recorded by the defendants in 2010, infringed of a similarly titled song recorded by Copeland two years earlier.
     Copeland and Overton claimed they sent a copy of their song to Sangreel Media, a company that recruits artists for several major records labels, in 2008, and that Sangreel in turn sent the copy to Usher, who liked it enough to invite Copeland to join him on tour.
     Usher recorded his “Somebody to Love” and posted it on his YouTube channel, then allegedly passed the song to Bieber, who turned it into a Billboard top 20 song in 2010.
     Bieber and Usher teamed up to record a remix of the song later that year.
     Copeland and Overton sought $10 million in damages compensatory damages and unspecified punitive damages, but Judge Allen said they simply had no case.
     “Having examined Plaintiffs’ song and the three accused songs, the Court finds that the songs cannot be reasonably construed as being substantially similar,” Allen wrote. “Although the accused songs have some elements in common with Plaintiffs’ song, their mood, tone, and subject matter differ significantly.”
     He noted that “[t]his is not a case where a listener who had not ‘set out to detect the disparities would be disposed to overlook them, and regard [the songs’] aesthetic appeal as the same … Instead, any listener who had not set out to detect the songs’ similarities would be inclined to overlook them, and regard the songs’ aesthetic appeal as different.”
     “[A] reasonable juror could not conclude that a member of the public would construe the aesthetic appeal of the songs as being similar,” Allen wrote.
     The 4th Circuit did not agree with this assessment, concluding that similarities in the melody, beat and the choruses were enough that a jury might find intrinsic similarities in the works.
     U.S. Circuit Judge Pamela Harris, writing for the three-judge panel, said, “[W]hen we listen to the choruses … 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,'” Harris continued. “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.”
     As a result, Harris wrote, the panel concluded, “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 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]’ … 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,” Harris said. “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.”

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