​Complaining Work

​Defending Work

Yeasayer, LLC


Audio Recording

Abel Makkonen Tesfaye (“The Weeknd”);
Kendrick Lamar Duckworth

“Pray for Me”

Audio Recording


Comment by Charles Cronin

The only similarity between the songs at issue in this dispute is their use of a repeating sound a few seconds long, of a few high voices singing a non-lexical syllable (“Ooo” or “Ahh”?) at what sound like pitches a fifth apart. The Complaint (below) claims Defendants copied (sampled) without authorization, Plaintiffs’ recording of this sound, and inserted it into their work. But the Complaint provides no basis for this allegation other than the purported similarity of this brief sound. It claims the “striking similarity” of the sounds establishes that the Defendants had access to the Plaintiffs’ work. Given that the particular sound is generic non-protectable expression, its occurrence in both works has no bearing on the question of Defendants’ access. Moreover, the Complaint also specifically alleges that Defendants deliberately altered the Plaintiffs’ sound in order to conceal their appropriation of it.

Even if the Defendants sampled a brief audio clip from Plaintiffs’ recording, Defendants’ alleged electronic massaging of it to create a somewhat different sound may have resulted in a transformative work that would qualify as a fair use. Defendants could also claim the material at issue — a few seconds of a generic vocal sound — is de minimus, and not protectable expression.

Grasping at straws… In addition to their infringement allegations, Plaintiffs claim that Defendants violated the Digital Millennium Copyright Act’s provisions governing Content Management Information (CMI). Plaintiffs argue that in publishing their song, Defendants “intentionally removed or altered” CMI from the Plaintiffs’ work, and that “Plaintiffs resultantly seek enhanced damages and penalties.” This extravagantly attenuated claim is meaningless as it depends on Plaintiffs establishing that Defendants actually sampled their recording, and that by doing so infringed their copyright. The Complaint indicates Plaintiffs are far from substantiating either proposition.


On May 29, 2020 the parties signed a stipulation of dismissal with prejudice establishing that there was no infringement by Defendants (after all!). They also agreed to cover their own attorney’s fees and costs — Defendants doing so presumably based on their realization of the slim chance they would ever obtain these from the Plaintiff, even if awarded.


Complaint: PDF