SCOTUS Declines Review of Copyright Suit Over Josh Groban’s ‘You Raise Me Up’

The U.S. Supreme Court declined to decide on a circuit split regarding substantial similarity tests within copyright law. The decision came as a frustration of the owners of “the most popular song to be sold ever in Iceland in the history of Iceland.”

Johannsongs-Publishing Ltd. sued songwriter Rolf Lovland and several record companies over the song “You Raise Me Up” written by Lovland in 2001 and popularized by Josh Groban in 2003. It claims it was Josh Groban’s U.S. Ninth Circuit Court of Appeals testing for substantial similarity did not find sufficient similarities among “You Raise Me up” and the song of 1977 named “Soknudur,” while the Second Circuit’s “ordinary observer” test could find the song infringed.

The cases of copyright infringement involving music are notoriously difficult. For one thing, Ed Sheeran recently said, “There is only two notes, and a few chords that are used in popular music.” The current rule of proof for copyright infringement is derived directly from the Supreme Court’s ruling of Feist Publications, Inc. (Feist) v. Rural Telephone Service Co. Under Feist the copyright claimant must show that

  1. The defendants had access to their activities,
  2. The work of the defendant is “substantially identical” to the protected elements in the work of plaintiff.

So far, it’s left to the courts to determine how they identify which works are “substantially alike.” It’s not surprising that the two jurisdictions most commonly used for an action for copyright is New York and California. While the second and ninth circuits’ requirements of substantial identicality is … significantly identical, Johannsongs claims that neither one is able to convey an understanding of the “soul” of an item of music.

In the Ninth Circuit’s Extrinsic/Intrinsic Analysis

If Ninth Circuit courts examine substantial similarities, they use two kinds of tests known as “extrinsic” as well as the “intrinsic” test. The extrinsic test takes into account the share of protected elements between both works, and usually requires an analysis by an expert. If the court is able to find enough protected elements that are shared then it can proceed into the internal test that is, if a common person would believe that they were alike.

In Johannsongs’ instance the district court of federal appeals used a lot of expert testimony of the defendants. They found that any musical resemblances among “You Raised Me Up” or “Soknudur” are also evident in “Danny Boy,”” an Irish folk song which is within the domain of public access. Thus, the court granted defendants their motion to dismiss the case.

In the appeal, The Ninth Circuit panel punted on Johannsongs requests to employ another test and wrote that they could only differ from the test that is intrinsic or extrinsic if it was the case that Supreme Court released an opinion in opposition to the theory. Then it was off towards the Supreme Court they went, insisting that the courts must follow the test used by The Second Circuit.

A 2nd Circuit’s Ordinary Observer Test

The courts of the Second Circuit determine substantial similarity through analyzing the “total feeling and concept” of a piece that is copyrighted following the elimination of insecure similarities such as stock plot elements. In the case of Williams v. Crichton,the Second Circuit determined that even though the children’s book of plaintiff shared the same set-up like Michael Crichton’s “Jurassic Park” (a dinosaur park) but the idea and the feel of the two books were distinct. “The Jurassic Park works are modern-day horror novels featuring villainous characters as well as gruesome violence,” it was ruled by the Court. “[T]he Dinosaur World series, however, are tales of adventure and, while thrilling in certain places, it has positive conclusion.”

The Ninth Circuit’s test might be more complex and usually needs more input from experts, Johannsongs’ petition to SCOTUS said the test was “logically ineffective.”

“It does not make any sense to try to decipher the notes on two songs and then compare their notes on paper than to analyze an organ of two dead individuals and determine which ones were similar,” the label argued. However, it appears SCOTUS is not singing the same song. The 25th of April was the day that on April 25, Supreme Court declined to take on the case with no an explanation.

The Fourth Circuit and the Eighth follow the Ninth Circuit’s intrinsic/extrinsic analysis The Third Fifth, Fourth and Seventh Circuits fall into those of the Second Circuit. Other circuits have switched between the two or have used their individual hybrid rules. For the moment at the very least, it’s will remain the same.

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