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Copyright Infringement, Copyright Issues, Right of Publicity, Rock and Roll, Sufficiently Similar

What Do Justin Bieber, Usher Raymond, Robin Thicke, Pharrell Williams and Sam Smith Have in Common?

Music concertJustin Bieber, Usher Raymond, Robin Thicke, Pharrell Williams and Sam Smith have all recently been challenged by claims of copyright infringement based on allegations that they incorporated other people’s music into their recordings. If celebrities can be found liable for copyright infringement and ordered to pay millions of dollars, what should non-celebrity musicians and producers do to avoid a similar fate?

In the case involving Bieber and Usher [Some Background], musician Devin Copeland alleged that they had used material from his 2008 song titled “Somebody to Love” in their 2010 hit with the same name. The trial judge granted Bieber and Usher’s motion to dismiss the case on the grounds that no reasonable jury could find the two song sufficiently similar to find the duo liable for copyright infringement. However, on appeal in 2015, the Fourth Circuit found the two songs to be “cohesive wholes, without distinguishing between protected and unprotected elements, just as the works’ intended audiences likely would encounter them in the marketplace,” and reached the opposite conclusion. The case has now been sent back to the trial court, which forces Bieber and Usher to settle or face a jury trial.

After being contacted by the family of Marvin Gaye, Robin Thicke and Pharrell Williams sought a declaratory judgment that their 2013 song, “Blurred Lines,” did not infringe the copyright in Gaye’s 1977 hit “Got to Give It Up.” The heirs of Marvin Gaye brought counter-claims of copyright infringement. The matter survived a Williams/Thicke motion to dismiss and was sent to a jury. In 2015, the jury found that there was substantial similarity between the two songs and the Gaye family was awarded $4 million in actual damages and $3.38 million in lost profits. [More Detail] The question as to whether the Gaye Family will also be granted injunctive relief (i.e., preventing Thicke/Williams from reproducing, performing, etc. “Blurred Lines” and impounding existing copies of the song) remains open, as it appears that neither side is prepared to give up the fight.

By contrast, in 2014, a potentially litigious dispute between Sam Smith, a British soul singer, and Tom Petty, an American folk rocker, was avoided. Soon after the release of “Stay With Me,“ by Sam Smith, his publisher was contacted by the publishers of ”Won’t Back Down,” co-written by Tom Petty and Jeff Lynne, who asserted that the choruses in the two songs were similar. By way of defense, Smith said, “It was a complete accident. I am 22 years old…. I’ve never listened to that song.”  [Smith’s Quote]

We will never know whether Mr. Smith’s protestations of “no access” (a key element in proving copyright infringement) to the Petty song would have carried any weight with a jury because the parties entered into a settlement with Smith acknowledging the similarities between the two songs, giving Petty/Lynne writing credit and 12.5 percent of the royalties from “Stay With Me.”

The outcomes from these scenarios offer guidance for song writers, performers and producers:

• Because music is easily accessible over the Internet and other media, expect that if there are similarities between your work and that of another, you will hear about it.

• If you are in doubt about whether your song is derivative of someone else’s, then consider testing it prior to public release against the song in question before an audience composed of likely intended consumers.

• If you know that you will incorporate the work of another in your song, then obtain a license to do so. The fee you pay before your song becomes famous will most likely be far less than the damages you will pay after it becomes famous.

• If it is your idea to create an “homage” to another performer or to recreate a genre, then consider carefully how you go about composing the work. It is one thing to write and perform music in a certain genre or the performance style of a particular singer, and quite another to incorporate actual material from a work or imitate the sound of the recognized performer. In addition to claims of copyright infringement, you could face the charge of violating the celebrity’s right of publicity. Bette Midler successfully sued Ford Motor Company for violating her right of publicity by using without her permission a sound-alike in a TV commercial. [Midler v Ford Details]

• Be aware that if your work is challenged, during the course of a trial, it will be subject to minute examination.

• If your work is challenged, consider the path laid out by Sam Smith, find a way to settle the matter.

About Law Office of Barbara I. Berschler

In addition to advising my clients about general business matters associated with business formation and operation, I counsel for-profit and not-for-profit organizations about the protection and use of intellectual property.
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