District court grants summary judgment for writers and publishers of song “You Raise Me Up” performed by Josh Groban, finding that it is not substantially similar to Icelandic song “Soknudur” as a matter of law, and excluding plaintiff’s expert musicologist’s reports as unreliable, unhelpful and inadmissible.
Plaintiff Johannsongs-Publishing Ltd. owns the rights to the music in the Icelandic song “Soknudur.” Defendants Rolf Lovland and Brendan Graham wrote the song “You Raise Me Up,” which was first released by the Irish-Norwegian band Secret Garden in 2001 and later performed by Josh Groban in 2003. Plaintiff sued Lovland, Graham, and the publishers and sellers of “You Raise Me Up” for copyright infringement, alleging that the song was unlawfully copied from “Soknudur.” Defendants moved for summary judgment on the grounds that the similarities in the music and the lyrical themes of the two songs were not sufficient to support a finding of copyright infringement, as they are found in prior art and public domain songs. The court granted defendants’ motion for summary judgment.
The court began by explaining that in order to establish a claim for copyright infringement, a plaintiff must prove (1) ownership of a valid copyright and (2) copying of the constituent elements of the work that are original. The copying element contains two separate components: factual copying and unlawful appropriation. Only the unlawful appropriation element was at issue on defendants’ summary judgment motion. Unlawful appropriation requires that two works be substantially similar, which is determined using an extrinsic and intrinsic test in the Ninth Circuit. Only the extrinsic test is relevant to a motion for summary judgment.
As an initial matter, the court noted that while plaintiff alleged that “You Raise Me Up” copied the lyrics and lyrical themes of “Soknudur,” plaintiff does not own any rights in the “Soknudur” lyrics, and it therefore had no standing to pursue an infringement claim based on any lyrical similarities.
The court then considered whether the music of “You Raise Me Up” was substantially similar to the music of “Soknudur” under the extrinsic test. Even though both parties submitted expert reports in support of their positions, the court held that only the report by defendants’ expert, Dr. Lawrence Ferrara, was admissible.
Plaintiff’s expert, Judith Finell, submitted an initial report, which the court found to be “far less comprehensive” than defendants’ expert report to the point of being “fatally flawed.” Finell’s initial report failed to apply reliable principles and methodologies to the facts of the case as required by Fed. R. Evid. 702(c) and (d). For example, Finell’s initial report failed to adequately explain the terms used, or to analyze the musical excerpts in the context of the entire compositions. Finell also admitted in her initial report that she did not conduct a prior art investigation or filter out any unprotectable elements that derive from prior art as required by the extrinsic test. These failures rendered Finell’s initial report “legally deficient” and “irrelevant.”
The court found Finell’s rebuttal report unhelpful for similar reasons. Specifically, although Finell pointed to an eight-note sequence purportedly in common between the parties’ songs, defendants’ expert Ferrara demonstrated that the same sequence is found in famous public domain Irish folk songs “Londonderry Air” and “Danny Boy” and is therefore not protectable. Plaintiff’s expert’s rebuttal report failed to filter out elements of these prior art songs from the works and compare the remaining elements, as the case law requires. Instead, plaintiff’s expert simply tallied up the number of similarities between the songs at issue and the prior art. The court held that a “comparison that includes both unprotectable and protectable elements is invalid under the extrinsic test and is legally irrelevant.” The court also concluded that both Finell’s initial and rebuttal reports were inadmissible, unreliable and unhelpful because they “fail[ed] to describe reliable principles and methodology, fail[ed] to apply such principles and methodology to the facts, and fail[ed] to properly apply the extrinsic test.”
After discounting plaintiff’s expert’s reports, the court held that the two songs are not substantially similar as a matter of law, because the Ferrara report, which the court found to be well supported and essentially unrebutted, established that “Soknudur” and “You Raise Me Up” lack substantial structural, harmonic, rhythmic and melodic similarities. Specifically, the court found that the melodic similarities are either too scattered to support a finding of substantial similarity or are unprotectable because they are found in prior art songs.
Citing the Ninth Circuit’s recent en banc decision in Skidmore v. Led Zeppelin, the court found that a claim based on a selection and arrangement of unprotected elements requires a plaintiff “to explain how these elements are particularly selected and arranged”; otherwise, the claim “amounts to nothing more than trying to copyright commonplace elements.” The court concluded that plaintiff failed to pursue a selection and arrangement theory because it failed to meaningfully engage in an analysis of unprotected elements that were supposedly selected and arranged in an original expressive way.
Summary prepared by Tal Dickstein and Ava Badiee