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Ninth Circuit affirms grant of summary judgment dismissing copyright infringement claim holding that song lyric “I need to know now” is not protectable, and plaintiff failed to identify substantial similarity of musical composition or actual copying of sound recording.
Plaintiff, singer-songwriter Alisa Apps, sued Universal Music Group Inc., Island Records, and songwriters John Newman and Steve Booker for copyright infringement, alleging that the song “Love Me Again” (sung by Newman) is a copy of her song “Need to Know.”
The district court granted summary judgment in favor of defendants, holding, among other things, that Apps’ copyright infringement claims failed on the merits. Apps appealed, arguing that the district court had not considered the “substantial evidence” she had shown of the similarities between the songs.
The Ninth Circuit disagreed and in an unpublished decision affirmed the district court’s dismissal. The Ninth Circuit’s decision hinged on the facts that (1) the phrase “I need to know now” is not copyrightable, (2) Apps failed to demonstrate that “Love Me Again” actually copied her sound recording of “Need to Know” and (3) Apps failed to produce sufficient evidence of objective similarities between the two works.
Because Apps provided no direct evidence of copying, in order to show that defendants infringed on her copyrighted work, she needed to show that the two works are “substantially similar” and also that “the alleged infringers had ‘access’ to her work.” The Ninth Circuit held that she failed to demonstrate substantial similarity, and so did not rule on whether Apps established access.
With respect to substantial similarity, first, lyrically, the only commonality between the two works is the phrase “I need to know now.” Words, short phrases and ordinary phrases are not copyrightable, and UMGI demonstrated the ubiquity of the phrase by presenting 11 songs (predating “Need to Know”) that also used the phrase “I need to know now.” Because the lyrical similarity between the two works was not copyrightable, Apps failed to demonstrate substantial similarity with respect to the lyrics of the works.
Second, Apps alleged that the recording of “Love Me Again” is sonically similar to her recording of “Need to Know Now.” However, a “mimicked copyrighted recording is not infringement absent actual copying.” Because Apps failed to demonstrate that there was actual copying of her recording, she failed to establish copyright infringement with respect to the sound recording of her song.
Lastly, Apps argued that the musical compositions of the two works are substantially similar. When determining whether two works are “substantially similar,” the Ninth Circuit applies a two-part test. The first part (the extrinsic test) is an objective comparison of certain expressive elements. The second part (the intrinsic test) is a subjective comparison that centers on whether an ordinary, reasonable person would find the “total concept and feel of the works” to be “substantially similar.” Courts apply only the objective, extrinsic test at the summary judgment stage, and “[a] plaintiff who cannot satisfy the [objective] test necessarily loses on summary judgment, because a jury may not find substantial similarity without evidence on both the [objective] and [subjective] tests.” The Ninth Circuit found that Apps “failed to produce sufficient evidence of objective similarities between the compositions of the songs,” and as such, found that the two musical compositions were not substantially similar.
Summary prepared by Linna Chen and Lyndsi Allsop