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Johannsongs-Publishing, Ltd. v. Lovland

Ninth Circuit affirms summary judgment dismissing copyright infringement claim brought by owner of Icelandic song against writers, music publishers and record companies of internationally acclaimed song “You Raise Me Up,” finding district court properly excluded plaintiff’s expert musicologist’s reports, and that undisputed evidence showed that most of similarities between songs exist in prior art.

 Johannsongs-Publishing Ltd. sued Rolf Lovland and Brendan Graham, the writers of the internationally acclaimed song “You Raise Me Up,” and the music publishers and record companies of the song for copyright infringement. Johannsongs alleged that the song, which was first released by the Irish-Norwegian band Secret Garden and later popularized by Josh Groban, was unlawfully copied from the Icelandic song “Soknudur.”

The defendants filed a motion for summary judgment, which the district court granted after holding that the two songs are not substantially similar as a matter of law, because any similarities between the songs are found in prior art and public domain songs, and therefore are not sufficient to satisfy the Ninth Circuit’s extrinsic test for copyright infringement. In doing so, the district court held that the expert reports submitted by Johannsongs’ expert musicologist, Judith Finnell, were inadmissible because they were “fatally flawed” and failed to apply reliable principles and methodologies to the facts of the case as required by Fed. R. Evid. 702(c) and (d). (Read our summary of the district court decision here.)

Defendants subsequently filed a motion for attorneys’ fees under 17 U.S.C. § 505, in an effort to recoup the costs of defending the action. The district court denied that motion, finding that Johannsongs’ arguments were not frivolous. Johannsongs appealed the district court’s summary judgment order, and defendants cross-appealed the district court’s attorneys’ fees decision. The three-judge panel affirmed both of the district court’s decisions.

The court first held that the district court did not abuse its discretion in excluding Finell’s expert reports, because they failed to filter out non-protectable elements as required by the extrinsic test. The court further held that the district court properly admitted the expert reports submitted by Dr. Lawrence Ferrara, defendants’ expert musicologist, because “Ferrara applied reliable principles and methods, he appropriately filtered out prior art, and his conclusions are well supported by evidence[.]” The court held that Johannsongs’ failure to submit admissible evidence to rebut Dr. Ferrara’s conclusion that “You Raise Me Up” and “Soknudur” are not substantially similar proved fatal to its copyright infringement claim because Johannsongs failed to satisfy the Ninth Circuit’s extrinsic test.

In coming to this conclusion, the appellate court refused to depart from the Ninth Circuit’s two-part extrinsic/intrinsic test for substantial similarity in favor of the Second Circuit’s “ordinary observer” test. The court reasoned that it cannot depart from Ninth Circuit precedent unless a “subsequent Supreme Court opinion ‘undercut[s] the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable’”—which has not occurred.

The Ninth Circuit panel further held that the district court did not abuse its discretion in denying defendants’ attorneys’ fees motion, because the district court’s finding that Johannsongs’ claims were neither frivolous nor objectively unreasonable was supported by the record.

Summary prepared by Tal Dickstein and Ava Badiee