(CN) – A federal judge in Chicago denied requests for summary judgment in a suit that claims Destiny’s Child stole parts of its 2004 song “Cater 2 U” from Rickey Allen, who says he copyrighted a song by the same name in 1994.
U.S. District Judge James Holderman ruled that the phrase “cater to you,” is too general to be protected by Allen’s copyrights.
Holderman added that a “three note [musical] phrase” found in both songs is not protected either because it “is so common, that it is a basic ingredient of music composition.”
But Holderman acknowledged that the lyrics in both songs have similar themes: they both discuss relieving the stress of a partner after a long day at work and they both mention a hot bath, massage and “interactions between the lovers in bed.”
Holderman wrote that it is undisputed that the songs do not sound alike at first, but whether the Destiny Child’s song “has captured the ‘total concept and feel'” of Allen’s song is best left up to a to a jury.
Holderman noted that while Destiny’s Child and its recording team can describe the creative process by which they came up with the lyrics and ‘musical bed’ of their song, the weight of their testimony about their “independent creation” process will depend on “a determination of the credibility” of Destiny’s Child and its production team.
Holderman shot down a motion for summary judgment on the music companies’ vicarious liability. He denied Allen’s request to strike supplemental affidavits of Rodney Jerkins, a music producer and composer, who Allen claims shared a copy of his song with Destiny’s Child after he got it from Allen’s agent, Andrea Murray. Jerkins has denied ever receiving a copy of the tape from Murray.
Murray, who is also a defendant, is accused of losing recordings that Allen gave her and of not promoting his music as promised.
Holderman granted judgment in Murray’s favor, saying there was no proof that Allen’s music would have been a hit even if she had “aggressively promoted him.” The judge said that since Allen did not pay Murray for her services, there are no damages to be claimed. Allen previously withdrew a copyright infringement allegation against Murray.
Allen’s original complaint was filed in 2006 and names defendants Beyonce Knowles, Kelly Rowland and Michelle Williams of Destiny’s Child, Destiny’s Child Inc., Beyonce Publishing, Kelendria Music Publishing, MW Publishing, Rodney Jerkins, Rodney Jerkins Productions, Andrea Murray, music producers Robert Waller, Robert Morrison and Maurice Joshua, songwriter Ricky Lewis, No Harm Publishing, McDonald’s Corporation, Columbia House, EMI Blackwood Music, Sony Urban Music/Columbia CK, Sony/ATV Tunes LLC and Sony BMG Music Entertainment.