By Sara Cracau, J.D.
A composer and musician failed to state a copyright infringement claim against members of a band and a recording company who allegedly copied portions of the plaintiff’s guitar solo and included them in a song they composed, the federal district court in New York City has ruled. The court held that the musician failed to plausibly plead that the allegedly infringing fragment contained a literal or nearly literal copy of the identified portion of the musician’s work as required under the doctrine of fragmented literal similarity with respect to the guitar line, the use of a tambourine, and the drum, percussion, and bass line. In addition, the musician’s claim relating to the chord change similarly failed as the chord change was not protected by copyright (Rose v. Hewson, January 30, 2018, Cote, D.).
A composer and musician brought a copyright infringement action against Paul Hewson, p/k/a BONO, three other members of the band U2, and a music recording company, claiming that they infringed his copyright by willfully copying fragments of "Nae Slappin," an original musical work which he created to include in a guitar solos for the song "The Fly." "The Fly" was a rock composition containing lyrics, a melody, and chorus consisting of four minutes and 25 seconds, and featuring a 12-second guitar solo at about two-thirds from the beginning of the song.
The band members and recording company moved to dismiss the action on the grounds that it failed to state a claim upon which relief could be granted. "Nae Slappin" was a three minute and 30 second extended guitar instrumental, backed by percussion and a bassline, which contained a 13-second guitar riff near the very beginning of the composition. The composition did not contain any vocal element, have an obvious beginning, middle, or end or a repeated melody forming a structure. The composer sent a copy of the recording to a record company as a "demo tape."
The musician alleged three similarities between a 13-second segment of his composition and a 12-second segment featuring a guitar solo in "The Fly." He alleged the infringing similarities included: (1) a virtual note for note reproduction of the guitar line; (2) the use of the tambourine to highlight the beat; and (3) the same drum, percussion, and bass line. In addition, he alleged that a certain chord change was copied in "The Fly" and that the "dimensions of sound" were substantially similar.
The guitar line. The court held that the musician failed to plausibly plead that the allegedly infringing fragment contained a literal or nearly literal copy of the identified portion of the musician’s work as required under the doctrine of fragmented literal similarity. The record did not include sheet music to help in evaluation of the notes but the audio clips included in the complaint were sufficient to show that a reasonable juror could not conclude that the two fragments of the works were sufficiently close. Even if the two fragments were of similar styles of guitar playing, they did not create the same melody and the musician did not contend that they did.
The tambourine. The court concluded that the allegation regarding the use of a tambourine also failed to plead a claim of fragmented literal similarity. The musician did not contend that the use of the tambourine in the fragment was quantitatively or qualitatively significant to "Nae Slappin" as a whole nor did he contend that the use of the tambourine in the guitar line fragment in "Nae Slappin" was identical or nearly so to the alleged infringing fragment from "The Fly." The presence of the tambourine to highlight a beat or guitar line did not constitute an original expression that is protectable by copyright.
The drum, percussion, and bass line. As with the tambourine claim, the court concluded that the musician did not plausibly allege that the use of the rhythmic elements in the 13-second fragment were quantitatively or qualitatively significant in "Nae Slappin." Neither did he plausibly allege that the band members and recording company literally copied or nearly literally copied his original combination of drum, percussion, and bass line.
The chord change. The court concluded that the chord change from E7 to A7 that was heard in "Nae Slappin" shortly after the fragment bearing the guitar line was not subject to copyright protection. As in the case of the tambourine and percussion claim, the allegation was both vague and sweeping. Furthermore, a chord change is a common musical occurrence over which exclusively rights can be claimed. The musician did not plead that the chord change was protectable under the fragmented literal similarity doctrine and he failed to explain how the chord change was a quantitatively and qualitatively significant element of "Nae Slappin."
The dimensions of sound. The court concluded that the allegation that the "dimension of sound" in the two works was substantially similar did not suffice to state a plausible claim of infringement. The court noted that it was impossible to apply the fragmented literal similarity test to this allegation because it failed to point to specific portions of the parties’ works or provide an audio guide as to what was meant by "dimensions of sound." The court further noted that abstract ideas may not be protected by copyright and this allegation was too vague to provide fair notice to the band members and recording company for the basis of the claim. No reasonable juror listening to the two works in their entirety could find that they were similar.
The case is No. 17cv1471 (DLC).
Attorneys: Thomas M. Mullaney (Law Offices of Thomas M. Mullaney) for Paul Rose. Brendan Joseph O'Rourke (Proskauer Rose LLP) for Paul David Hewson, David Howell Evans and Adam Clayton.
Companies: UMG Recording, Inc.
MainStory: TopStory Copyright NewYorkNews
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