Parker v. Winwood, et al.

Comment by Charles Cronin

This infringement claim is based on the plaintiffs’ allegation that the defendants copied a “riff” or “distinct note pattern” from the complaining song. But the complaint does not identify the riff or “note pattern” in question and, from hearing sound recordings of the two songs, it is apparent that their sharing conventions of a musical genre (“soul”) is their only commonality. The words of both songs share the conceit of a lovestruck suitor enumerating the charms of the object of his/her affections, and a brief, although not identical, repeated phrase that includes the word “loving”. These similarities are remarkably attenuated grounds for a claim of substantial similarity of protected expression.

The complaint quotes published commentary that alludes to the influence of the plaintiffs’ song on that of the defendants’. These comments, however, tell us nothing about whether this influence resulted in unauthorized copying of protected expression, or merely use of similar generic and unprotectable musical and verbal ideas. Perhaps most surprising is that this claim was made fifty years after the alleged infringement took place. It is difficult to believe that the plaintiffs were unaware until recently of the two songs at issue, and that the claim should be deemed untimely.

The facts of this dispute are akin to those of the recent “Blurred Lines” case, and perhaps the plaintiffs here were emboldened by that claim’s success to lodge this complaint. Happily, this dispute had a different outcome when, in 2019, the 6th Circuit upheld the district court’s decision in favor of the defendants. It agreed that the district court had no jurisdiction over the plaintiff, and noted that it was only on appeal that the plaintiffs argued “striking similarity” based on their expert’s report, which they submitted only after briefing had ended on the defendants’ motion for summary judgement.

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Complaint: PDF 

District Court Opinion by Judge Jon McCalla: PDF

6th Circuit Court of Appeals Opinion by Judge Griffin: PDF