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IP/Entertainment Case Law Updates

Rose v. Hewson

District Court holds that 13-second guitar riff in plaintiffs’ musical composition is neither protectable nor substantially similar to guitar part in U2’s 1991 song “The Fly,” granting defendants’ motion to dismiss.

Plaintiff Paul Rose brought suit against four members of the rock band U2 and UMG Recordings Inc., as distributor of records and albums of U2, for copyright infringement, alleging that defendants infringed his copyright by copying fragments from his song “Nae Slappin’” for the U2 song titled “The Fly.” Plaintiff alleges that a 13-second segment of his “Nae Slappin’” was similar to a 12-second segment of U2’s “The Fly,” including “(1) a virtual note for note reproduction of the guitar line, with identical backing; (2) the use of a tambourine to ‘reinforce’ the beat; and (3) the same drum, percussion and bass line.” In addition to these similarities, plaintiff alleges that the first chord change in “Nae Slappin’” was copied during a six-second passage in “The Fly” and that the “dimensions of sound” of the two works are substantially similar.  

Plaintiff’s first amended complaint included clips from the songs on which plaintiff rested its claims and also identified the four allegedly protected elements of “Nae Slappin’.” Defendants moved to dismiss for failure to state a cause of action, and plaintiff opposed the motion by arguing that the fragments of the two works were similar.

Under the theory of “fragmented literal similarity,” liability may exist when substantial elements of a fragment of a copyrighted work have been copied even if there is no substantial similarity between the works as a whole. Consequently, “the inquiry questions not only the amount of material that was copied, but whether that material is qualitatively important to the plaintiff’s work.” Defendants argue that the two works are not substantially similar, especially when considering the protected elements of “Nae Slappin’.” The court agreed and dismissed plaintiff’s copyright infringement claims, finding that plaintiff’s allegations did not relate to any protectable element of “Nae Slappin’” and that “Nae Slappin’” and “The Fly” are not substantially similar.  

First, the court held the guitar line was not sufficiently original to merit copyright protection. The court rejected plaintiff’s argument that the “style of playing” or the “principal thrust” of “Nae Slappin’” are protectable components of a musical composition. Even if there were protectable elements of the plaintiff’s 13-second guitar line, which comprises only 6 percent of the song, it was not sufficiently important — either quantitatively or qualitatively — to “Nae Slappin’” as a whole to be a protectable fragment. The court also held that there were no substantial similarities between the parties’ works, as they do not contain the same melody, harmony or rhythm. “The defendants’ fragment does not, therefore, recreate the notes, sounds, or rhythm of the plaintiff’s work in a way that would permit a finding that the copying was sufficiently close to find infringement under the fragmented literal similarity doctrine.”

Second, the court held that the use of the tambourine in “Nae Slappin’” is not protectable, rejecting plaintiff’s argument that the simple presence of the tambourine illustrates that defendants closely studied his song. In so doing, the court held the “presence of the tambourine to accentuate or highlight a beat or guitar line is not an original expression that can be protected by copyright” and that copyright expression does not extend to works inspired by other works.

Third, the court held that plaintiff failed to state a copyright infringement claim in connection with the drum, percussion and bass line, as plaintiff’s allegations were too vague to identify any protectable expression. The court held that the chord change was not original to plaintiff and therefore not subject to copyright protection.

Finally, as to the “dimension of sound,” the court held that plaintiff failed to state a cause of action because his complaint provided no details as to what this allegation entails.

Summary prepared by Tal Dickstein and Ava Badiee

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