Bieber and Usher “Usher” Out Copyright Claims

Many of the most famous musicians have faced high-profile copyright cases accusing them of stealing their music from another artist. From Led Zeppelin to the Beatles to Skrillex to the guy who wrote the Ghostbusters theme song, the list of musicians who’ve stared down a copyright infringement claim is a long on indeed,  In the last few years, Usher and Justin Bieber have been dealing with their own copyright infringement lawsuit.  The two were accused of stealing parts of their collaborative song “Somebody to Love” from an identically titled song written by two Virginia artists–Devin Copeland and Mareio Overton.

Understanding the Claim

Mr. Copeland and Mr. Overton wrote their own “Somebody to Love” back in 2008, two years before Usher and Bieber came out with their song in 2010 which then went on to peak at No. 15 on the Billboard Hot 100.  Copeland and Overton argued that Bieber’s song’s chorus
was incredibly similar to their own work and demanded $10M from the two artists.  However, the courts disagreed.  The case was dismissed, sent back down for reconsideration after appeal and Bieber and Usher finally succeeded in having the copyright lawsuit against them dismissed once and for all just a few weeks ago. 

The court’s decision revolved around the inability of the plaintiffs to show that Justin Bieber had access to their song before he wrote his own version–a fundamental element of proving copying in a copyright infringement case.  However, in order to truly understand the ruling it is necessary to understand exactly how copying is shown when somebody is accused of infringement.

How to Put the “Copy” in Copyright Infringement

In order to succeed in a copyright infringement case you have to establish that the person you’ve accused of infringement, lo and behold, copied your protected work.  This makes sense, if you can’t show that a defendant copied from you, then why are you in court?  However, the evidence required to show copying has two parts.  First, you need to show that the accused work is similar to yours.  If it isn’t, that’s not exactly a copy is it?  Second, you need to show that your defendant had access to your work.  Once again, if they never saw your work how could they have ripped you off?

So we have our two elements but, like most things in law, it’s more complicated than that.  The two elements, similarity and access, are analyzed on a sliding scale.  The more proof of similarity, the less evidence you need of access and vice versa.  To add one more wrinkle, it was established in a case against the late Michael Jackson (and reaffirmed when the Isley Boys later sued Michael Bolton) that if the two works are similar enough you don’t actually need any evidence of access because the court is willing to presume that a defendant copied your work if it’s similar enough to what you made originally.  This is a concept known in law as striking similarity, courts look to a number of things to decide if two works are this similar but common examples would be where your work had particularly unique qualities that were copied nearly verbatim or that you messed something up in your work and they were dumb enough to copy your error.

In Bieber’s case, Mr. Copeland and Mr. Overton tried to establish striking similarity–arguing that the chorus of their version of “Somebody to Love” had a near identical chorus to the one put out by Bieber and Usher.  Unfortunately for them, their judge didn’t agree.  Thus, while they could show some level of similarity, they were required to produce evidence that Bieber or Usher had actually listened to or been exposed to their 2008 song before they wrote their own version in 2010.

Access Hollywood: A Star-Studded History of How to Prove Access

Unlike similarity, no matter how evidence of access you have you always need to show at least a little bit of similarity.  Otherwise if enough people see your work, anything they made would be copyright infringement.  However, just like in the Bieber case, it is frequently a crucial sticking point in copyright cases as it can be hard to prove at times.  Over time, exactly what is acceptable as evidence of access has been refined–often in cases featuring some particularly famous names.

First and foremost, the evidence required is a sliding scale.  The more similar the works, the weaker the evidence of access that is required.  For instance, there have been cases where evidence as weak as the fact that a work was published to the internet–and the defendant had internet access–was enough.  Where a work is particularly famous and widely distributed, that can also be evidence enough to show access.  However, just a few years ago a case dealing with the script to the Matt Damon’s Sci-Fi movie Elysium established that, just because something is posted to the internet once, that doesn’t by itself show that a work was widely distributed and won’t always be enough evidence to establish access.  This served as a counter point to a lawsuit brought by the developers of Angry Birds, where being posted online and subsequently downloaded approximately a billion times was enough to show widespread distribution.

In the internet age, availability online is often central to establishing access.  However, the cases above leave you with the helpful understanding that a single post is generally not enough to show access but content posted and then downloaded a billion times is.  Just to fill in the small gaps in the middle there, a couple factors to think about are how often something is viewed or shared, how publicly available the internet content is, how popular the site the content was posted on is, and how high the content appears in search results.

Also important in understanding access is the fact that copying does not need to be done consciously.  This was established in a case brought against George Harrison of Beatles fame.  His song “My Sweet Lord” led to a lawsuit as it was nearly identical to another song called “He’s So Fine.”  Harrison admitted that he knew of the song and had heard of it, but said he just wasn’t thinking about it when he wrote his own song.  The court, in a nearly apologetic ruling against the rock star, said that just because you weren’t intentionally copying or thinking about the work at the time, the subconscious knowledge of the work through previous access is sufficient to show copying.  This was highlighted more recently when Marvin Gaye’s children sued Robin Thicke.  Thicke testified that he was so high while the song was written that he could not have possibly recalled Gaye’s work–although he did admit Gaye was an inspiration to him.  This was irrelevant to access. however, as the actual access itself was all the evidence needed. 

Finally, a particularly common type of confusion in access cases dealing with music deals with cases where an artist gave their song to music industry executive who works with an artist who later makes a similar song.  Unless there is actual evidence that the executive showed that song to the artist accused of infringement, a devilishly tricky thing to find, there’s generally not enough there to establish access.

Ultimately, Why the Case Failed

Mr. Overton and Mr. Copeland were trying to argue just that, saying that they had given their songs to music executives working alongside Bieber and Usher.  However, they couldn’t produce any evidence of those executives passing on anything to Usher or Bieber.  What’s more, their song wasn’t particularly widely distributed–either over radio, the internet, or other methods.  They were left in a situation where they couldn’t show that either singer had ever even heard of their work–and that killed their case.  Bieber and Usher claimed that their song was based on a November 2009 song by a woman named Heather Bright with which they had previously reached an agreement to use her work.  Overton and Copeland simply couldn’t prove otherwise.