In the recent case of Copeland v Bieber (Fourth Circuit Court of Appeals) (Available Here), the Court was faced with an appeal by Devin Copeland, after the lower court ruled against him. Copeland alleged that three recorded songs by the defendants, each titled “Somebody to Love,” infringe upon his copyright over his own, earlier song of the same name. The district court granted the defendants’ motions to dismiss on the ground that no reasonable jury could find Copeland’s song and the defendants’ songs sufficiently similar to give rise to liability for infringement.
In 2008, together with his songwriting partner Mareio Overton, Copeland began writing and recording songs to perform on his upcoming album, My Story II. Among them was “Somebody to Love,” the song that is the subject matter of this case (the “Copeland song”). Copeland registered a copyright for the My Story II songs, including “Somebody to Love,” later that year. Copeland’s song was presented to Usher, who indicated a desire to bring him on tour, including the re-recording of the album. Subsequently after that meeting, User released a demo song titled “Somebody to Love”. Although it was not commercially released by Usher, he then gave it to Justin Bieber, who recorded his own version and released it on the My World 2.0 album, also titled “Somebody to Love.”
Copeland sued for copyright infringement. The district court applied the Fourth Circuit precedence which requiring copyright plaintiffs to prove two distinct forms of similarity: “extrinsic” similarity, an objective match between the copyright-protectable elements of an original work and a purported copy, often based on expert testimony; and “intrinsic” similarity, a more subjective and “essentially aesthetic judgment” as to whether the intended audience of two works would experience them as similar in overall effect. The District Court only reviewed intrinsic similarity, and the overall appeal of the two works to their intended audience. It found that the relevant “intended audience” in this case is the general public, as the expected ultimate market for Copeland’s song. And the general public, the court concluded, would not “construe the aesthetic appeal of the songs as being similar,” for despite some shared elements, the “mood, tone, and subject matter” of the songs differ “significantly.” It found that no reasonable jury could find the songs substantially similar under the intrinsic prong. The Court failed to review the extrinsic prong.
Bieber and Usher do not dispute that Copeland had a valid copyright and that they had access to his work. Instead the appeal hung on the concept of substantially similarity. The Appeal Court noted that the intrinsic and extrinsic test was correct, but that both must be reviewed. The Court explained:
The “extrinsic inquiry is an objective one,” looking to specific and “external criteria” of substantial similarity between the original elements (and only the original elements) of a protected work and an alleged copy. Because the inquiry is objective, expert testimony often will be relevant. And because it is focused only on the original elements of the copyrighted work, a court examining extrinsic similarity must first engage in a process we sometimes call “analytic dissection,” separating out those parts of the work that are original and protected from those that are not.
Intrinsic similarity, by contrast, is a subjective inquiry that centers on the impressions of a work’s “intended audience,” usually the general public. So under the intrinsic prong, we analyze works as cohesive wholes, without distinguishing between protected and unprotected elements, just as the works’ intended audiences likely would encounter them in the marketplace. We often have described intrinsic similarity as measuring the “total concept and feel” of the works in question.
Copeland sought to have the Appeals Court find that under the intrinsic prong, the analysis be confined to original elements and preceded by analytic dissection. However, the Court noted that it previously decided, along with the Second and Eighth Circuit Court of Appeals, that analytic dissection is inapplicable to the intrinsic analysis, because a work’s intended audience “does not make th[e] distinction” between protectable and unprotectable elements and instead encounters a work “as one object.”
Copeland also seeks the Court to decide that intrinsic similarity is a question reserved for the trier of fact, and only the extrinsic similarity prong can be grounds for dismissal at the summary judgment and pleading stages. The Court declined to review that request, noting that “even assuming that a motion to dismiss may be granted on the ground that no reasonable jury could find intrinsic similarity, the district court erred in doing so here.”
The Court instead chose to focus on summary judgment, and began by reviewing intrinsic similarity. This specifically included a targeted analysis of “intended audience.” The Court explained “So where the market for a given work consists of a discrete and specialized class, the reactions of a generic ordinary observer will not be particularly relevant. But in most cases, we cautioned, the general public is in fact the intended audience, and “a court should be hesitant” to find otherwise.”
The Court goes on to explain, with caution that the formulation matters: “There is a reason that the Dawson formulation uses the word “audience,” rather than “buyer” or “recipient”: Ultimate marketability is not always determined by the impressions of a first-hand purchaser or recipient, but may sometimes rest on the impressions of third parties — the work’s actual “audience” — whose preferences the buyer or recipient has in mind when acquiring the work.”
The Court finally reached the last and largest review that it needed: “Whether the songs at issue, assessed from the perspective of the intended audience — here, the general public — and taking into account their “total concept and feel,” are sufficiently intrinsically similar to give rise to a valid infringement claim.” The Court noted that the only way to accomplish this was to play all the songs in their entirety back to back.
When making the actual comparison of the songs, the court reviewed as follows: The district court acknowledged that the Usher and Bieber songs “have some elements in common” with the Copeland song. But for the district court, what was dispositive was a significant difference in the overall “aesthetic appeal” of the respective songs. We cannot agree. In our view, that analysis attaches too much weight to what the district court termed a difference in “mood” and “tone,” and too little to similarities between the “element” of the songs — their choruses — that is most important.” The Court applied the concept that mood and tone likely meant genre, and if so, that cannot be dispositive under copyright law.
Additionally, the Court noted that the works are dissimilar in many ways. “And if substantial similarity were a purely quantitative inquiry, asking only whether the majority of the works in question overlapped, we would agree with the district court that no reasonable jury could find the requisite intrinsic similarity.” The Court however reaches its crescendo and states: “But what that analysis fails to account for, we think, is the relative importance of these differences as compared to what the songs reasonably could be heard to have in common: their choruses.”
The Court found that their choruses are similar enough and also significant enough that a reasonable jury could find the songs intrinsically similar, based on the most obvious similarity, the shared chorus lyric and mirrored in the songs’ titles: “I  need somebody to love.” As a result, the Court arrives at its end, and finds: “Whether a member of the general public could experience these songs primarily through their choruses and thus find them substantially similar, notwithstanding the differences catalogued above, is in our view a close enough question that it cannot be disposed of as a matter of law and should instead be decided by a jury.”