District court denies motion to dismiss copyright infringement claim alleging that hip-hop songs “Paper Chase” by Jay-Z and Timbaland and “Toe 2 Toe” by Timbaland infringed three-bar guitar riff in plaintiff’s 1960s soul song, finding that guitar riff is entitled to copyright protection and musicologist’s report sufficiently identified how riff was allegedly used in hip-hop artists’ songs.
Soul singer Ernie Hines co-authored the song “Help Me Put Out The Flame (In My Heart)” in the 1960s. This song opens with a three-bar guitar riff and a musical crescendo. In 2018, Hines heard the songs “Paper Chase” and “Toe 2 Toe,” and in May 2020, he sued the composers of these songs and two music companies with financial interests in these songs (BMG Rights Management (US) LLC and W Chappell Music Corporation) for copyright infringement of his “Help Me” guitar riff and musical crescendo. “Paper Chase” was composed by rappers Shawn Carter (known professionally as “Jay-Z”) and Timothy Mosley (known professionally as “Timbaland”). “Toe 2 Toe” was also composed by Timbaland.
Defendants moved to dismiss Hines’ complaint arguing that Hines failed to state a claim for copyright infringement because he failed to (1) “identify what musical content is allegedly contained in [the] guitar riff” or “how such musical content is protectable,” (2) explain how defendants allegedly copied the riff in question and (3) establish “how the alleged copying—from a three-measure guitar riff—is substantial enough to constitute infringement.” The court rejected all three of these arguments, denying defendants’ motion to dismiss.
With respect to the first argument, the court concluded that Hines had sufficiently alleged the protectability of the guitar riff because copyright law protects a song’s “notes [and] rhythm.” The court explained that Hines had alleged that defendants copied precisely these elements, referencing Hines’ expert musicologist’s report attached to Hines’ complaint and incorporated by reference, which stated that “Paper Chase” and “Toe 2 Toe” contain identical or near-identical “pitches” and “rhythmic values” as the opening bars of “Help Me Put Out The Flame (In My Heart).”
Defendants also argued that the guitar riff and musical crescendo are not protectable because they are not original. Defendants cited Hines’ expert musicologist’s report, which stated that Hines copied the guitar riff from “a widely used public domain melody titled ‘Mysterioso Pizzicato.’” The court rejected this argument because Hines’ expert’s report explained that although the riff takes its basic structure and melody from “Mysterioso Pizzicato,” it “uses some different pitches and rhythmic values,” giving it enough of a creative spark, however small, to qualify as original. Accordingly, the court declined to dismiss the complaint on the basis of defendants’ first argument.
The court also rejected defendants’ second argument, that Hines had failed to allege “how or where” his guitar riff was allegedly incorporated into “Paper Chase” and “Toe 2 Toe.” The court again cited plaintiff’s expert musicologist’s report, which stated that parts of the “Help Me” riff—including a five-note section from the middle of the riff and the final G-minor chord— repeat throughout “Paper Chase” and “Toe 2 Toe.” The report also concluded that approximately 84% of “Paper Chase” contains audio samples of the “Help Me” guitar riff and that part of the guitar riff “makes up the guitar audio loop” that cycles through “Toe 2 Toe.” The court considered these facts “enough to support an inference” that defendants copied Hines’ work, especially in light of the report’s further conclusion that defendants “sampled audio from—and therefore had access to—the ‘Help Me’ recording.” Although the court held that dismissal on the basis of defendants’ second argument was improper, the court declined to decide the ultimate issue of whether such copying rises to the level of substantial similarity. While noting that the question of substantial similarity can be decided on a motion to dismiss, the court declined to rule on substantial similarity in this instance due to “the technical nature of the allegations.”
In addressing defendants’ third argument—that the alleged copying did not qualify as infringement because the three-measure guitar riff comprises an insubstantial portion of “Help Me”—the court applied the doctrine of “fragmented literal similarity,” which applies where the alleged copying concerns “a fragment of a copyrighted work” rather than the work as a whole. In such cases, “the question of substantial similarity is determined by an analysis of whether the copying goes to trivial or substantial elements of the original work.” The court further explained that this determination requires both a qualitative and a quantitative analysis, with consideration of both whether a defendant copied “important features of the plaintiff’s protected expression” and “how much of the plaintiff’s protected expression has been copied.” As with the issue of substantial similarity, the court declined to decide the ultimate issue of whether the copying went to substantial elements of “Help Me” because discovery was “necessary to shed light on the qualitative significance of the guitar riff to the rest of the song.”
Summary prepared by Tal Dickstein and Nathalie Russell