Duncan Byers of the Byers Law Group in Norfolk, who argued for Copeland and his songwriting partner Mareio Overton, said that “we are extremely pleased that the Fourth Circuit panel unanimously recognized the striking similarities between my clients’ work and the copies. My clients are looking forward to vindicating their claims in a trial and are positive a jury will agree with the court of appeals.”
Byers said there had been no settlement discussions in the case so far, but that his clients were open to an offer.
According to Copeland’s complaint, his song “Somebody to Love” was on an album that made its way into Usher’s hands through an artist recruiter. Copeland, whose stage name is “De Rico,” said that Usher’s manager (his mother Jonetta Patton) told Copeland that she and Usher were interested in having Copeland re-record the song and join Usher on tour, but there was never any follow-up.
A few months later, according to court papers, Usher recorded a song called “Somebody to Love” and posted the video on YouTube. He didn’t release it commercially, instead bringing it to Bieber to record. Bieber’s version reached No. 15 on the Billboard Hot 100 Chart. Bieber also recorded a remix of the song with Usher (see video below).
Copeland sued Bieber and Usher in May 2013 in the U.S. District Court for Eastern District of Virginia for copyright infringement. He claimed the duo ripped off his song “Somebody to Love,” pointing to similarities with the songs that Bieber and Usher released. Bieber and Usher successfully argued in the district court that the case should be dismissed because no “reasonable” jury could find that the songs were “substantially similar.” Copeland appealed.
To win under copyright law, Copeland had to prove both “extrinsic” and “intrinsic” similarities between the songs. Determining extrinsic similarity would involve a technical analysis of musical composition, while intrinsic similarity is more subjective, measuring similarities in the audience experience of listening to the music.
The district judge found Copeland’s case failed the intrinsic-similarity test, and dismissed it without reaching the extrinsic prong. The Fourth Circuit rejected Copeland’s objections to the legal framework that the district judge used to compare the songs, instead finding that the district judge was simply wrong to find that a reasonable jury couldn’t find substantial similarities.
Appeals court listens to Bieber song
To determine whether there were intrinsic similarities, the Fourth Circuit judges listened to the songs “in their entirety and side by side,” Harris wrote. (The Fourth Circuit’s oral argument audio is here.)
Copeland’s song was a different genre than the Bieber and Usher versions, the appeals court said, but that wasn’t enough to rule out copyright infringement.
“For if a difference in genre were enough by itself to preclude intrinsic similarity, then nothing would prevent someone from translating, say, the Beatles’ songbook into a different genre, and then profiting from an unlicensed reggae or heavy metal version of ‘Hey Jude’ on the ground that it is different in ‘concept and feel’ than the original,” Harris wrote.
The Fourth Circuit panel said the district judge put too much weight on differences in the “aesthetic appeal” of the songs and not enough on similarities between the “element,” or chorus. In the choruses, the court found “the kind of meaningful overlap on which a reasonable jury could rest a finding of substantial similarity.” The lyric “somebody to love” was “delivered in what seems to be an almost identical rhythm and a strikingly similar melody,” Harris wrote.
Judges James Wynn Jr. and Henry Floyd also heard the case.
Updated with comments from Duncan Byers.
Below: Watch Justin Bieber and Usher perform a remix of “Somebody to Love.”