First there was Led Zeppelin. A few weeks later, Katy Perry. And now Josh Groban. All music copyright cases, all from courts in the Ninth Circuit, all in favor of the defendants. Er eitthvað að gerast í Kaliforníu?
Plaintiff is the publisher and owner of the rights to the ballad “Soknudor,” which was written in 1977 by Jóhannes Helgason, an Icelandic guitar player best known for his work in the new wave band Þeyr, but who now is a pilot for Icelandair. (This means Helgason has held two of my dream jobs.) In Icelandic, soknudor (actually, söknuður) means "to feel a loss," and, appropriately, the song is reportedly hugely popular at Icelandic funerals. Defendants Rolf Lovland and Brendan Graham co-wrote the song "You Raise Me Up," which was recorded first (in 2001) by Secret Garden and later (in 2003) by Josh Groban. Groban's version made it to #1 on the Billboard adult contemporary chart, earned him a Grammy nomination, and is hugely popular in my mother’s mahjong circle in Tampa, Florida.
In 2018, the plaintiff sued the defendants, alleging that “You Raise Me Up” infringes upon "Soknudor." Last fall, certain of the defendants – specifically, the publishers of “You Raise Me Up” and record labels that released recordings of the song – moved for summary judgment on the grounds that, as a matter of law, the two songs were not substantially similar and that any similar elements were not original to “Soknudor” because they were derivative of the public domain Irish folk tune “Londonderry Air,” familiar to many of us under the title “Danny Boy,” and other prior art. In a decision issued last week, the district court granted the defendant’s motion.
The case turned on whether “You Raise Me Up” was substantially similar to “Soknudor” under the extrinsic test. As discussed in this post, the Ninth Circuit uses a two-part extrinsic/intrinsic test to determine whether a defendant’s work is substantially similar to the plaintiff’s. The first (extrinsic) prong requires an objective comparison of the elements that are protectable under copyright law in the two works. Expert testimony from musicologists is permitted at this stage to help distinguish between protectable and unprotectable elements (such as ideas, public domain elements, and scenes a faire). Following this “analytic dissection” (or filtration), the similarities between the protectable elements in the two works are compared. In the second (intrinsic) prong, the fact finder engages in a subjective analysis and comparison of the protectable elements of the two works from the standpoint of the ordinary reasonable observer.
As is often the case in music copyright disputes, this case involved a battle of two well-known and respected musicologists who filed expert reports. After comparing the reports on both sides, the court was persuaded that the defendants’ expert had the better position, holding that “any melodic similarities between ‘Soknudor’ and ‘Raise’ are either unprotectible because they are found in prior art songs including ‘Londonderry Air’ aka ‘Danny Boy,’ or they are too scattered to amount to substantial similarity.”
Some highlights from the decision:
- The court held that any similarity between the lyrics and lyrical themes of the two songs could not form the basis for a finding of substantial similarity because the plaintiff did not own the copyright in the lyrics to “Soknudor” – it only owned the copyright in the melody.
- The defendants’ musicologist submitted a report in which he concluded that the two songs lacked significant structural, harmonic, rhythmic, and melodic similarities that were not commonplace or in prior art. As support for his opinion, the defendants’ expert noted that out of a total of 87 notes in the melody of the first verse and chorus in “You Raise Me Up,” there were only 20 scattered notes that had the same pitch and metric placement in “Soknudor,” and only 5 of those 20 similar notes were not also found in “Danny Boy.” Moreover, within the 20 notes shared by “Soknudor” and “You Raise Me Up,” there was only a single 3-note sequence, and that same sequence also appeared in “Danny Boy.” Relying heavily on the analysis of the defendants’ expert, the court concluded that “there are no significant structural, harmonic, rhythmic, lyrical, or melodic similarities” between “You Raise Me Up” and “Soknudor.”
- The court was unconvinced by the arguments marshaled by the plaintiff and its expert to support a finding of extrinsic similarity. The court’s principal objection was that, in its view, the plaintiff's musicologist had failed to filter out prior art from ‘Soknudor” and “You Raise Me Up” before comparing the two songs, as required by the intrinsic test. The court also criticized the plaintiff’s expert for treating notes as similar even when they appeared in different places in the songs’ melodies (i.e., different metric placement) and for identifying successions of pitches as similar even when there were intervening pitches between some of the notes.
- Finally, the court found that the plaintiff had not presented any analysis to support an argument that the selection and arrangement of unprotected elements in “Soknudor” gave rise to a protectable interest under copyright law that was infringed upon by “You Raise Me Up.”
Við getum búist við því að stefnandi muni áfrýja þessari ákvörðun. Á meðan skulum við fara í Bláa lónið!
Johannsongs-Publishing, Ltd. V. Lovland, No. CV 18-10009-AB (SSx) (C.D. Cal. April 3, 2020).
Brian Murphy is Partner at Frankfurt Kurnit Klein & Selz where he counsels advertising agencies, advertisers, and entertainment companies as they develop and produce advertising and entertainment properties across all media. Mr. Murphy was named 2018 Attorney of the year for Advertising and Entertainment Law by Best Lawyers.
This column presents a general discussion of legal issues, but is not legal advice and may not be applicable in all situations. Consult your attorney. To contact Brian Murphy ESQ click here.
