2:19-cv-02507 (C.D. Cal. July 22, 2020)
20-55861 (9th Circuit 2020)
Comment by Charles Cronin
This allegation of infringement is based on a comparison of the musical “hooks” of the two songs, which is offered on page 5 of the Complaint. The hooks are musically similar insofar as they both outline a descending fifth followed by a descending tritone (A – D; A – E-flat). This sequence is not protectable expression, and has been used in untold numbers of earlier compositions. Between the descending intervals in both hooks is a bit of dissimilar noodling around the upper pitch set to rhythms indicated by the words being sung.
Should this litigation move forward, Defendant could easily summon a great deal of “prior art” demonstrating the generic quality of material Plaintiffs are attempting to protect as copyrightable expression in their “original and novel composition.” But perhaps that will not be necessary. After the District Court Order (below) denied Defendant’s Motion to Dismiss, relations between the Plaintiffs and their attorneys appear to have soured to such an extent that on May 4th, 2020 the District Court granted their attorneys’ Motion to Withdraw as Counsel.
On June 1st, 2020, Defendants filed a Memo (below) in support of their Motion for Summary Judgment. It persuasively argues how extravagantly unlikely, prior to this dispute, Defendants were aware of the Plaintiffs and their unpublished song. It also effectively dismantles the Plaintiffs’ experts’ report, and specifically its deliberate disregard of prior art, which reveals the scant originality of the musical expression on which the Plaintiffs base their claim. (There is a minor, but commonly encountered, error on page 9 of the Memo where it states: “the songs have roughly similar rhythms of 120 beats per minute and 114 beats per minute, respectively.” Beats per minute refers to the tempo (speed), not the rhythm of a musical work.)
In an opinion issued on July 22, 2020, Judge Anderson for the Central District of California granted Defendants’ Motion for Summary Judgement, concluding that Plaintiffs did not sufficiently establish genuine issues of material fact regarding the elements of access and substantial similarity.
In January 2021, Plaintiffs appealed (brief below) with the extraordinary claim that, despite the district court’s determination that there was practically no similarity between the contested songs, their music was actually strikingly similar, creating a presumption of copying despite the weak showing of access by defendants.