District court grants summary judgment dismissing copyright infringement claims involving hip-hop songs “Paper Chase” and “Toe 2 Toe,” finding that allegedly copied three-bar guitar riff was not sufficiently original to be protected by copyright and that defendants’ songs were not substantially similar to plaintiff’s song.
Ernie Hines, the author of the 1960s soul single “Help Me Put Out The Flame (In My Heart),” sued W Chappell Music Corp., Jay-Z, Timbaland and Ginuwine for copyright infringement, alleging that defendants unlawfully used the introduction of “Help Me” in two hip-hop songs, “Paper Chase” and “Toe 2 Toe.” The district court addressed two motions for summary judgment filed by defendants, as well as Hines’ motion to reconsider the denial of his request to extend the discovery period. The district court granted defendants’ motions for summary judgment and denied Hines’ motion for reconsideration.
The allegedly copied musical element consists of a three-bar guitar riff at the beginning of “Help Me” that lasts about six seconds. That part of the introduction does not repeat in any other part of “Help Me” and has no melodic connection to other melodies in the song. The U.S. Copyright Office issued a copyright registration for “Help Me” in 1969, but the deposit copy does not include that part of the introduction.
After the district court dismissed an earlier related case, Hines filed the instant action. The district court previously denied a motion to dismiss for failure to state a claim (read our summary of the court’s decision here). After Hines joined Ginuwine as a defendant, the parties proceeded to discovery. The court later denied a motion by Hines to extend the discovery deadline. The court rejected Hines’ motion for reconsideration, explaining that it already took account of certain personal conflicts and that the parties had already had a year to complete discovery. The court therefore excluded materials from Hines’ expert report that were not produced until after the discovery cutoff.
The court granted defendants’ motions for summary judgment, holding that (1) the introduction is not sufficiently original to be protected by copyright; and (2) even if the introduction were copyrightable, defendants’ songs did not copy enough elements from “Help Me” to be substantially similar and therefore constitute infringement.
Defendants argued that the introduction of “Help Me” is ineligible for copyright protection because it is drawn from a “stock, public domain phrase from a 1914 work—‘Mysterioso Pizzicato.’” They submitted an expert report that compared the introduction with “Mysterioso Pizzicato” and at least 28 other songs that use the same stock device. The court agreed that the introduction borrows from a heavily used work in the public domain, and that it only adds a single “C” note and a note played offbeat, which are not protectable. Because artists cannot claim copyright in the “raw materials of art [such as] the basic building blocks of music, including tempo and individual notes,” the court reasoned, Hines could not claim copyright in the elements he added to create the introduction. The court pointed to Hines’ own expert report, which also acknowledged that the introduction alluded to “Mysterioso Pizzicato” and offered no detailed analysis on the distinctions between it and the introduction.
Regarding the alleged similarity between defendants’ works and Hines’ introduction, the court considered whether the works’ protectable elements, standing alone, were substantially similar. To assess substantial similarity, the court used the “fragmented literal similarity” test, which applies when a defendant is alleged to have copied a portion of the plaintiff’s work exactly or nearly exactly, without appropriating the work’s overall essence or structure. Under that test, the relevant similarity is “measured by considering the qualitative and quantitative significance of the copied portion in relation to the plaintiff’s work as a whole.” The court held that Hines could not show either quantitative or qualitative significance. The introduction represents barely 3% of “Help Me” in total, which suggests a lack of quantitative significance. Furthermore, the introduction is not repeated or recalled elsewhere in “Help Me,” and the deposit copy for “Help Me” omitted the introduction, all of which suggests a lack of qualitative significance. For these reasons, the court held that no reasonable jury could find that the amount of copying here was sufficient to support a copyright infringement claim.
Summary prepared by Tal Dickstein and Brandon Zamudio