Comment by Charles Cronin

The complaint’s (below) identifying numerous defendants, and discussing each one’s allegedly infringing action, reflects the fact that pop hits today are “designed by committee”.  Committee members tweak the words and sounds of a song until they believe they have arrived at the most marketable version, and then have a well-known entertainer like Justin Bieber, young and photogenic enough to cavort onstage and in front of a camera, to sell it. This distributed authorship, however, along with the fact that typically no member of the committee is musically literate, results in songs akin to Lego block constructions in which children cobble together windows, doors, etc., into what appears to be a coherent whole, without the slightest understanding of fundamentals of architecture or construction engineering.

This dispute, factually similar to the claim Cirque du Soleil recently lodged against Justin Timberlake, involves a brief four-pitch motif that the plaintiff claims constitutes protectable expression as both music and sound recording that the plaintiff alleges the defendants’ copied.

The complaint, by the plaintiff’s nominally challenged attorney, Howell O’Rear, contains a good deal of gnomic or irrelevant assertions to establish musical similarities: “the notes of the [plaintiff’s] vocal riff correspond with the tonic of the song without overstating its progression.” What does that mean?

Or how about: “In scientific pitch notation, the four notes of the sampled female vocal riff of both “Ring the Bell” and the infringing “Sorry” are Bb, C, Eb, F. The four pitches are of equal duration and are sung in a rapid succession by Plaintiff’s voice. The temporal spacing of the notes of the female vocal riff in both “Ring the Bell” and the infringing “Sorry” are the same.” In other words there is nothing original about the rhythm of the plaintiff’s motif – in fact, it has no rhythmic character at all.

Given the weakness of her claim of musical infringement, the plaintiff apparently hopes that a judge or jury will be sympathetic to her claim that defendants’ sampled her recording without authorization. But she never establishes that the defendants lifted a snippet of her recording and, in fact, the rendition of the motif on defendants’ recording sounds different from hers. Perhaps she is fishing for an admission by the defendants that they did lift a fragment of her sound recording but, given the insignificance of the taking, it should not be actionable but rather permissible as de minimus or a fair use.

The complaint refers to the plaintiff’s attorney’s earlier attempts to engage the defendants in a discussion of the claim. Defendants, sensibly, in my opinion, ignored these attempts, which appears to have irked the plaintiff and her attorney, who then filed this suit. The language of the plaintiff’s initial attempt to correspond with Bieber, as mentioned in the complaint, suggests that behind the reasonable tone, plaintiff was seeking a quick capitulation and payout from the defendants:

“[t]he purpose of this letter is to provide notice of the claims and to open a dialogue regarding potential resolution of these claims….We are hopeful that your client sees the merit in a confidential and private dialogue and negotiated resolution.”

Suggestion to Bieber, et al.: Don’t settle, it only encourages them!

Complaint: PDF