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Fourth Circuit vacates district court dismissal of copyright infringement claim against defendants Usher and Justin Bieber, finding that choruses in songs were sufficiently similar to withstand motion to dismiss, as reasonable jury could find songs intrinsically similar.

Devin Copeland, a singer and songwriter, and his songwriting partner, Mareio Overton, brought suit for copyright infringement against Justin Bieber, Usher Raymond IV (otherwise known as Usher), Universal Music Corp., associated music publishing companies, and affiliated parties, alleging that three songs recorded by Usher and Bieber infringed the copyright of their song “Somebody to Love.” Plaintiffs alleged that Usher was given a copy of an album of songs Copeland was working on in 2009, including a recording of “Somebody to Love.” According to Copeland, Usher expressed initial interest in having Copeland record an album but never followed up. Subsequently, Usher released a YouTube demo of a song called “Somebody to Love.” That song was recorded and released by Justin Bieber in the spring of 2010, and a remixed version that included Usher was released a few months later.

Defendants filed a motion to dismiss, arguing that no reasonable jury could find that the three Usher/Bieber “Somebody to Love” songs were substantially similar to Copeland’s song. The district court agreed, finding that the songs were not intrinsically similar because the intended audience for the songs, the general public, would not “construe the aesthetic appeal of the songs as being similar.” Despite some shared elements, the “mood, tone, and subject matter” of the songs differed “significantly,” said the district court. On appeal by Copeland, a three-judge panel of the Fourth Circuit vacated the district court’s findings and remanded the case for further proceedings.

In its decision, the Fourth Circuit declined to decide the question of whether a district court may grant a motion to dismiss without an analysis of “extrinsic similarity,” an objective review of the copyright-protectable elements of an original work and the purported copy, often based on expert testimony. The Fourth Circuit found that, even assuming that a motion to dismiss may be granted on the ground that no reasonable jury could find intrinsic similarity, which requires a more subjective analysis, the district court erred in granting dismissal.

After listening to each of the songs in their entirety to determine whether a reasonable jury could find that they are subjectively similar, the Fourth Circuit found that the district court placed too much emphasis on the differences in “mood” and “tone” and too little on the similarities between the most important elements of the songs – the choruses. Though the songs were from different genres, R&B and dance pop, the court found that differences in genre were not dispositive.

The Fourth Circuit based its ruling on the fact that the choruses in the songs were substantially similar, noting that, “courts routinely permit a finding of substantial similarity where the works share some especially significant sequence of notes or lyrics.” Noting that the chorus, commonly known as the “hook,” is the part of the song most often repeated and remembered, the Fourth Circuit concluded that the choruses are similar enough that a reasonable jury could find the songs intrinsically similar. “It is not simply that both choruses contain the lyric ‘somebody to love’; it is that the lyric is delivered in what seems to be an almost identical rhythm and a strikingly similar melody,” the court pointed out. Therefore, the issue of similarity was a close enough question that it could not be disposed of as a matter of law and should be decided by a jury.