‘Never Say Never’: Bieber and Usher Dragged Back into Copyright Battle

By: Valerie Mock* | Summer Guest Writer

In April of 2010, Justin Bieber released “Somebody to Love,” an upbeat urban pop song that peaked at number 15 on the Billboard Hot 100 and earned a Platinum certification from the Recording Industry Association of America (RIAA).  The track received positive critical reception from industry standards like Rolling Stone, and was so popular that Bieber eventually re-recorded the song with his superstar mentor, Usher, for distribution both as a remix and as part of Usher’s 2010 EP “Versus.”

Author=[http://lorenwohl.com/ Loren Wohl] |Date=2010-12-13 |Permission= |other_versions= }}

Author=[http://lorenwohl.com/ Loren Wohl] |Date=2010-12-13 |Permission= |other_versions= }}

Unfortunately, according to the claims of a 2013 lawsuit in the Eastern District of Virginia, the hit single is also stolen.  Singer Devin “De Rico” Copeland and songwriter Mareio Overton allege that the mentor/protégé pair stole their original composition and seek $10 million dollars in lost profits as a result.

To establish a valid claim for copyright infringement, a plaintiff must prove that they have a valid copyright for a work, and that the defendant copied this protected work to create an infringement.  If a plaintiff cannot prove direct copying, they can establish it inferentially by proving (1) the defendant had access to the work, and (2) that the defendant’s copy is “substantially similar” to the plaintiff’s original.

Richmond Federal Courthouse

Richmond Federal Courthouse

In today’s age, because of the wide-spread accessibility generated by the internet, access is easily established.  “Substantial similarity,” on the other hand, must be established through a two part test.  The first component is “extrinsic” similarity, an objective standard that looks only at specific similarities between the protected, original elements and ideas of the first work and its counterparts in the alleged infringing work.  The second component, however, is “intrinsic” similarity, which is evaluated using a subjective test.  Intrinsic similarity is judged by evaluating the work as a whole and asking whether the work’s intended audience would view the songs as “substantially similar” in overall concept and feel.

Under these rules, the District Court for the Eastern District of Virginia dismissed Copeland’s suit in March of 2014.  The court evaluated only intrinsic similarity in reaching this decision, finding that “although the [Bieber and Usher] songs have some elements in common with [Copeland]’s song, their mood, tone, and subject matter differ significantly.”  In light of this, the court held that “a reasonable juror could not conclude that a member of the public would construe the aesthetic appeal of the songs as being similar.”

This victory for ‘Biebs’ was ultimately short-lived, however, as the Fourth Circuit vacated the dismissal and sent the case back to the District Court for further proceedings in June of 2015.  The court listened to the tracks for themselves in a de novo review, and decided that the district court analysis considered too heavily “a difference in ‘mood’ and ‘tone’, and too little [the] similarities between . . . their choruses.”  In an opinion containing musical references ranging from The Beatles to Aretha Franklin, the court advised that even a small part of a composition that was copied could have a massive effect on the marketability of the work.

In doing so, the court noted the importance of “hooks”, those short and catchy melodies that get stuck in your head for days, and in most instances make or break a song’s success.  The court held that the Bieber and Copeland songs had choruses that were “similar enough and also significant enough that a reasonable jury could find the songs intrinsically similar.”

Copeland certainly could walk away from this lawsuit with songwriting royalties.  This seems especially likely in light of recent suits against performers like Robin Thicke, wherein a jury awarded $7.4 million to the family of Marvin Gaye because Thicke’s controversial single ‘Blurred Lines’ infringed on Gaye’s hit ‘Got to Give It Up.’  Another example is Sam Smith, who recently settled a lawsuit with Tom Petty concerning infringement of Petty’s 1989 single ‘I Won’t Back Down.’  Whether Copeland’s money comes from a jury awarding damages or from a settlement, recent trends in copyright litigation suggest a payday.  In addition, like the Smith case, it might be simpler for Bieber to settle than to slog through the costly litigation of an unpredictable copyright suit.

This case also reiterates the strained debate over the purpose of copyright law. In promoting the constitutionally mandated “progress of science and the useful arts,” should the courts favor the established creator or the new artist?  After all, there are only so many notes and chords available in western music, and a finite number of combinations are possible.  Copyright law offers protection for independent conception, wherein two creators write the same song separate from one another, but is that possible to prove any more in an era of widespread internet access?  Cases such as this one, if taken to trial, will continue to bring issues like these to the forefront.

There is no word yet as to whether or not the case will proceed to trial.  In the meantime, if you’d like to make your own determinations about the case you can hear Bieber’s single here, and the chorus of Copeland’s song here.

*Valerie Mock is a second year law student at the Wake Forest University School of Law. Prior to law school, she studied Biology at the Georgia Institute of Technology in Atlanta, Georgia. After graduation, she hopes to practice intellectual property law, specifically patent and copyright litigation.