Amy Bowen, a country music songwriter performing as “Lizza Connor,” filed a copyright infringement action against country music stars Brad Paisley and Carrie Underwood, along with songwriters Kelley Lovelace, Chris DuBois and Frank Rogers; their music publishing companies; and the distributor of Paisley’s album. Bowen alleges that her 2008 song “Remind Me” was copied by the defendants in a Paisley and Underwood duet, also titled “Remind Me,” released in 2011. The defendants moved for summary judgment.
The court explained that to maintain a claim for copyright infringement, Bowen was required to show that she had ownership of a valid copyright and that defendants copied original elements of her work. To establish infringement where there is no direct evidence of copying, a plaintiff may establish an inference of copying by showing (1) that the defendants had “access” to the work that was allegedly infringed upon, and (2) that there is a substantial similarity between the two works. The defendants argued that Bowen could not establish either of these required elements.
Bowen argued that the defendants had access to her song through a number of different avenues. In 2008, Bowen performed her song at a songwriter’s workshop for Lovelace, who later co-wrote “Remind Me” with Paisley. Bowen also performed her song at various venues around Nashville between 2008 and 2011. Her song was also given to numerous music industry professionals, including one who later went on to work at defendant EMI April Music Inc. and who worked with Lovelace. The defendants argued that Lovelace was not involved in the writing of the melody for the Paisley song and that three years had passed between the time he allegedly heard Bowen’s “Remind Me” and when the Paisley song was recorded. Nevertheless, the district court concluded that a reasonable jury could find the defendants had access to Bowen’s song when they wrote theirs.
Turning to the issue of substantial similarity, the district court discussed the Sixth Circuit’s two-part test for determining substantial similarity: (1) the court must identify those original aspects of the work that are protected by copyright, and (2) the court must determine whether the allegedly infringing work is substantially similar to those protectable elements. Bowen alleged that the similarity between the two songs revolved around the use of the lyrics “remind me” and “baby, remind me” in the songs’ hooks, and the various musical techniques used in the works to accompany those phrases.
The defendants argued that those aspects of Bowen’s work were not protectable by copyright and thus would fail under the first part of the Sixth Circuit’s test. While the district court noted that short portions of lyrics like those at issue in this case are not entitled to copyright protection, it stated that, because Bowen had obtained a valid copyright registration in her work, there was a rebuttable presumption of originality. Contending that these short phrases were not protectable, defendants pointed to hundreds of songs titled “Remind Me” or containing the lyrics “remind me.” The district court, however, noted that the threshold for establishing originality is very low, and rejected the defendants’ argument that Bowen’s expression of the phrase “remind me” is unoriginal and unprotectable as a matter of law.
The district court then turned to the question of whether the portions of the works at issue are substantially similar by comparing the two songs, stating that, in order for the copying of a small fragment of a work to constitute copyright infringement, that fragment must be “qualitatively important.” Bowen did not argue that the works as a whole were substantially similar, but rather that the hooks — the catchy phrases often heard in a song’s chorus — have a number of similarities. Bowen argued that the hook lyrics “remind me” were repeated numerous times throughout both works, and that they were always paired with varying melodies. She also maintained that the high number of uses of the phrase “remind me” in both works and its placement in the chorus, were similarly unusual. Finally, Bowen pointed to various musical techniques that were used in both songs — such as the spacing of notes and various melodic features — as evidence of substantial similarity.
However, the district court found that, upon closer inspection, these alleged similarities fell apart. The report by the defendants’ musicologist cited evidence of many other songs that have a high number of repetitions of the phrase “remind me” sung over varying melodies. Just as the lyrical phrase “remind me” is not copyrightable, the district court held that the repetition of that phrase is not sufficiently distinctive to warrant copyright protection. Further, the court closely examined the allegedly similar musical techniques and melodic features. The court found differences in how these techniques were implemented in the two works, and that these devices were unlikely to lead a lay listener to determine that the works are substantially similar. Moreover, the district court concluded these technical similarities were overshadowed by the overall dissimilarities in the songs as to context, structure, mood, melody and harmony — features that a lay listener would likely identify in a musical work. Based on its analysis, the district court concluded that the two songs were not substantially similar, and granted the defendants’ motion for summary judgment.