Pitchforking the Fourth Circuit’s Take on Usher and Bieber’s “Somebody to Love”

By Chris Mincher

“Writing about music is like dancing about architecture,” quipped Martin Mull, summing up in eight words the difficulties and frustrations (and perhaps questionable merit) of trying to adequately convey the nature of a song in written language. I’ve been reviewing music for about a decade now, and it is a never-ending struggle; there is simply no smooth conversion from sound to text. In the realm of intellectual-property law, this constant challenge for critics becomes the occasional burden for the federal judiciary – as Fourth Circuit Judge Pamela Harris recently discovered in resolving a headline-making copyright case involving two pop mega-stars.

Copeland v. Bieber begins with Devin Copeland, a Virginia-based R&B singer with the nom de guerre of “De Rico,” and his songwriting partner, Mareio Overton. In 2008, the two put together an album with a song innovatively titled “Somebody To Love” and for which they got a copyright. (I found the song here, third from the top.) The next year, Copeland linked up with a promotional company that promptly passed the record along to none other than Usher (ahem, “Usher Raymond IV” for the purposes of stuffy, nothing-but-the-facts-ma’am judicial opinions).

According to Copeland, he later got a call from Usher’s mother/manager (awww, the best kind of manager!), saying the two had listened to the album, loved it, and wanted Copeland to re-record it and join Usher on tour. Well, neither of those things happened, but, months later, Usher did stick a demo up on his YouTube channel for a song called “Somebody To Love.” Usher’s then-15-year-old protégé, Ontario native Justin Bieber, came out with his own version shortly thereafter. The two were immediately arrested by a joint U.S.-Canadian task force and charged by federal prosecutors under the Cultural Decline Abatement Act of 2008, 55 U.S.C. § 983(e)(3), which was passed by an emergency session of Congress the previous year and prohibits the intentional encouragement of Bieber’s music career by any means.

Ha! I kid. No, instead, Bieber included the song on his 2010 album My World 2.0 and it quickly ran up the charts; an exceptionally lazy “remix” was also released, putting Usher back on the track to sing a verse. At that point, “Somebody To Love” was a bona fide hit, and Copeland and Overton bona fide hit both Usher and Bieber with a lawsuit alleging copyright infringement.

Quick primer on copyright infringement claims: Mainly, the plaintiff has to establish that he has a copyright on original, protected material (obviously), and that the defendant copied it (even more obviously). Such duplication can be demonstrated indirectly by showing access to the material and “substantial similarity” between the two works. Because all legal concepts involve rabbit holes of multipronged tests, “substantial similarity,” in turn, requires a showing of two types of similarity, “extrinsic” and “intrinsic.”

“Extrinsic” similarity is an objective match of copyrighted elements and often requires the two works to be picked apart by competing experts who specialize in blathering about the mechanical aspects of music until it becomes boring, academic, and soulless. “Intrinsic” similarity, on the other hand, is a subjective standard that asks whether the “total concept and feel” of the two works provide a similar experience to their intended audiences. Substantial similarity can also be shown by the sharing of an “especially significant sequence of notes or lyrics.”

Bieber and Usher moved to dismiss under Fed. R. Civ. P. 12(b)(6), arguing that no reasonable juror could find their version of “Somebody To Love” to be similar to Copeland’s. The judge undertook the analysis under the “intrinsic similarity” prong, identifying the intended audiences of the songs to be the general public and concluding that the general public wouldn’t find them similar because their “mood, tone, and subject matter” were “significantly” different. And that, they say, was the day the music-related lawsuit died.

For a while, at least. Copeland and Overton requested de novo review in the Fourth Circuit, requiring the panel to use fresh sets of ears to decide whether a reasonable jury could find the tunes intrinsically similar. In an opinion written by Judge Harris, the Court agreed with the district court that the subject matter of the two songs (the Usher/Bieber/remix trifecta was taken to be the same for the purposes of the analysis) wasn’t a match – Copeland’s track was about a breakup, while Usher’s was about starting a new relationship.

The Court took another approach, however, when considering whether the “mood” and “tone” were too dissimilar for a jury to find copyright infringement. To Judge Harris, noting a distinct “mood” and “tone” was really just acknowledging that the two songs weren’t in the same genre – Copeland’s was standard R&B, while Usher’s was electronic dance pop. Songs in different genres, of course, will almost always have separate concepts, feel, or aesthetic appeals. Therefore, “while genre may be relevant to intrinsic analysis of musical works,” the panel held, it “cannot be dispositive under copyright law.” (If it’s not immediately apparent why that is, consider the opinion’s example of someone doing a hard-rock or reggae cover of the Beatles’ “Hey Jude” but then escaping liability under the intrinsic-analysis prong.)

Having decided that genre couldn’t carry the day, the Court weighed whether there was some shared element of the two works that could sustain an infringement claim – and finding such a basis in the choruses. (This, after the Court took some room to play Captain Obvious and explain why a chorus is important to a song in general.) To the panel, both Copeland and Usher/Bieber seem to sing that they “need somebody to love” in “an almost identical rhythm and a strikingly similar melody” with “a high volume and pitch.” Despite a few tweaks to the notes, was that similarity significant enough for Copeland’s suit to survive summary judgment? Decreed the Court (more or less), “Yeah!”

As a lawyer, I find the analysis slightly curious in one regard. The Court relies on an “especially significant sequence of notes or lyrics” – in particular, the rhythm and melody of the choruses – in analyzing the songs’ intrinsic similarity. But focusing specifically on an “especially significant sequence of notes or lyrics” doesn’t seem to fit well with within the framework of the intrinsic-similarity test, which measures the “total concept and feel” of the “cohesive wholes” of the works. In this regard, there’s a conspicuous oddity in the opinion’s holding: “After listening to the Copeland song and the Bieber and Usher songs as wholes, we conclude that their choruses are similar enough and also significant enough that a reasonable jury could find the songs intrinsically similar” (emphasis added). Isn’t this essentially backing away from the traditional “intrinsic similarity” examination and just merging it with a looser, less technical version of “extrinsic similarity”?

If so, that comports with my instincts as a music reviewer. Critics usually listen to and digest a whole lot of music, making recognizing similarities in songs an extremely frequent occurrence (and a recurring topic to write about as well). When I hear material that seems to adopt some other source’s mood, tone, aesthetic, etc. – and this happens all the time – I accept it as homage, revival, or some other acceptable form of stylistic inspiration.

This seems right; why should the first pioneer of a sound have a monopoly on it? It’s why I found the result in another recent high-profile music-related copyright-infringement lawsuit to be problematic – even though a jury found that Robin Thicke and Pharrell crafted their hit “Blurred Lines” to be a little too close to Marvin Gaye’s “Got To Give It Up,” as far as I can tell, the only things they share are a backyard-party atmosphere, a pulsing bassline, falsetto, and some shrewdly deployed cowbell (in Gaye’s version, actually a Coca-Cola bottle struck with a fork, true story!). They don’t have the same melody, the same chords, or the same key. As such, the effect of the verdict is to effectively decide that, once the Prince of Soul penned his funky, festive crowd-pleaser with a loose dance groove, that’s the only song of its type that the world should ever get (at least, without funneling large sums to Gaye’s descendants).

A similar mood, tone, or aesthetic in songs never causes me to cry foul. What gives me considerably more pause are those identifiable combinations of melody and rhythm that regularly pop up – often taking different forms – in other artists’ compositions. If one has digested enough music through the years, noticing these recurring snippets can be hard to avoid. For example, just a few weeks ago while writing up Butch Walker’s new album for this piece, I noticed that the vocal/piano hook on “21+” (featuring on guitar, of all people, Johnny Depp) strongly reminded me of the motif sang by Mirah on last year’s “Radiomind.”

Neither song has been that big of a hit. The hook is not a particularly complicated bit of crooning, and it’s not strictly identical on the two tracks by any means. I have no idea whether Butch Walker is familiar with Mirah’s music or has ever heard “Radiomind.” It could easily just be one of those things. If, on the other hand (and imagined solely for the purposes of illustrating my point), there was evidence that it was not one of those things, that Butch Walker in fact toted around a copy of Mirah’s album Changing Light and listened to it constantly, or that Butch’s producer Ryan Adams played “Radiomind” on repeat during recording sessions, or that Butch liked to cover “Radiomind” and just tweaked his version until he came up with “21+” – these would be facts suggesting theft of some definable segment of songwriting that should be protected (either as an “especially significant sequence of notes or lyrics” or some other aspect of extrinsic similarity).

That’s not to say that Marvin Gaye didn’t work hard, exercise his genius, and create a unique vibe with “Got To Give It Up.” It’s just that legally shielding that “concept and feel” seems to plant his flag across too much space in the musical universe. Such broadly enforceable copyrights would make so many styles off-limits to future songwriters that the pop canon would be forever locked in to the fixed catalogue of classic-rock radio.

On the flipside of the same coin, as Judge Harris recognized, denying a claim for copyright infringement on the basis of a different mood or tone also seems wrong – it makes it too easy to swipe another artist’s handiwork by just giving it a new sonic context. Wanna write a great country-western song, but can’t string three notes together in any meaningful way? No sweat: Just fiddle the guitar riff from “Satisfaction,” add the organ riff from “Like A Rolling Stone” as played on a banjo, and top it all off by layering in a harmonica rendition of the “Imagine” piano melody. Voila! Whatever the result of that is (and if anyone tries it, please send me a copy), it’s unlikely to have the same mood and tone as any of its source material.

So the panel’s refusal to let traditional intrinsic-similarity principles carry the day at summary judgment certainly sits well with my intuition. Indeed, after Copeland, it’s reasonable to question what role, if any, the standard conception of intrinsic similarity will continue to have in the Fourth Circuit – if the measure is suspect when used offensively, and a no-go when used defensively, when is it of any real use? Regardless of what labels are used or whether couched in such terms as “objective,” “subjective,” “extrinsic,” or “intrinsic,” Copeland makes clear that the Court’s main concern in music copyright cases is preventing the appropriation of discrete passages or elements of songs, not their general aesthetic qualities.

As a final aside, a note on Judge Harris’ commendable translation of the music at issue into the text of a judicial decision. Sometimes her lingo strays into the territory of music theorists – gated chords, octave bass-lines, and eighth-note patterns probably being a touch too scholarly for the average music fan (which is not, of course, to suggest that the audience of a federal appellate opinion is the average music fan). But kudos are to be extended for numerous descriptions that could cut it in Pitchfork, such as the “forward-moving, propulsive effect” of Usher’s synth lines and “sparser beats”; Copeland’s “hectic R&B beat” accompanied by “two chords played in a backbeat, with a whimsical sound reminiscent of a circus organ”; and the two works’ “anthemic, sing-along” choruses. In all, an impressive command of critics’ terminology.

To sum this all up, Justice Stewart could not “intelligibly” describe hard-core pornography, but he knew it when he saw it. Likewise, copyright infringement in the music business may be difficult to explain in words or nebulous standards such as “intrinsic similarity,” but, in any case, judges seem to know it when they hear it. Now, if only Judge Harris could get a little footloose and teach us a something about Frank Lloyd Wright…