Hip-hop artist Future wins dismissal of copyright infringement suit after district court determines that none of alleged similarities between plaintiff’s song “When U Think About It” and Future’s song “When I Think About It”—including use of title lines in chorus and rap lyrics involving guns, jewelry and money—amounted to protectable expression.
Nayvadius Wilburn, also known as the chart-topping rapper Future, defeated a copyright infringement suit filed by rapper DaQuan Robinson when the district court dismissed plaintiff’s suit with prejudice. Robinson, a Virginia-based rapper known as Gutta, claimed that Future’s 2018 song “When I Think About It” infringed his 2017 song “When U Think About It.” Future’s companies, a producer and Sony Music Entertainment were also named as defendants. After registering the copyright in the sound recording, music and lyrics of “When U Think About It,” Robinson claimed that he shopped the song around to a producer and a recording artist, including one who had a contractual relationship with Future. With that background, Robinson claimed that Future’s “When I Think About It” copied certain elements of his song. Defendants moved to dismiss Robinson’s complaint under Rule 12(b)(6).
To prove copyright infringement in the Seventh Circuit, the district court explained, a plaintiff must show” “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” In order to establish copying, the Seventh Circuit requires a plaintiff to show “(1) ‘that the defendant had an actual opportunity to copy the original’ and (2) ‘that the two works share enough unique features to give rise to a breach of the duty not to copy another’s work.’” Here, defendants did not dispute the validity of Robinson’s copyrights, nor did they specifically argue a lack of opportunity to copy his song; rather, as the court put it, “the only issue to confront is whether the songs ‘share enough unique features’ to ‘rise to the level of copyright infringement.’”
Robinson’s complaint specified two similarities between the two songs, and he raised four additional areas of alleged similarity in response to defendants’ motion to dismiss. Robinson claimed the songs are similar in that (1) the choruses in both songs end with a similar phrase, being “when I/you think about it”; (2) they share general themes involving guns, jewelry and money; (3) they have similar song structures in that they alternate between choruses and verses; (4) they share the specific theme of “a story about a person proving to those around him that he is better, despite a past full of hardships”; (5) both use a “core lyric” to “support the story being told in the lyrics”; and (6) both are in the key of E.
In analyzing these alleged similarities, the court noted that “[t]o determine whether a work is ‘substantially similar’ to protectable expression, courts must filter out unprotectable elements of the original, then compare the works side by side to determine whether they are substantially similar, and thus whether the latter plausibly infringes the former.” This requirement that the allegedly copied elements must be protectable expression in order to be infringed proved to be central to the court’s analysis, as it found that none of the allegedly copied elements of Robinson’s “When U Think About It” were protectable.
First, the court held that the phrase “when you think about it” in Robinson’s song was not entitled to copyright protection, pointing to the rule that “short, commonplace phrases are not protectable elements of songs or other works.” Furthermore, the court rejected Robinson’s argument that the use of the phrases “when you think about it” and “when I think about it” in similar ways and places in the two songs amounted to unlawful copying, citing Seventh Circuit precedent explaining that such similarities do not make unprotectable short phrases any more protectable.
Next, the district court held that the thematic context of Robinson’s song—guns, jewelry and money—is not protectable because it falls within the scenes a faire doctrine, which dictates that “[w]here elements of a work are ‘indispensable, or at least standard, in the treatment of a given topic,’ they receive no protection.” Noting that guns, jewelry and money are common themes in hip-hop and rap music, the court held that this element is not protectable and was therefore not infringed.
As to the remainder of Robinson’s claimed similarities between his song and Future’s “When I Think About It,” the district court held that none were sufficiently original to warrant copyright protection. The court held that a song structure that alternates between chorus and verse is a “standard structure of a piece of popular music” that is “so common” it is not an original work of authorship. Robinson’s theme of a person trying to prove himself despite past hardships was also deemed insufficiently original to warrant protection by the court, which noted that the theme could apply to a vast number of works, including, for instance, The Great Gatsby. The court found that Robinson’s use of a “core lyric” to support the story of the song was similarly unprotectable, noting that “it is a frequently utilized technique in popular songwriting.” Lastly, the court held that the key in which a song is written is not sufficiently original to warrant copyright protection.
The court also considered whether the combination of all the alleged similarities, taken together, plausibly alleged infringement of Robinson’s copyrights. But the court, again citing Seventh Circuit precedent, held that no inference of infringement can be drawn where the similarities between two works amount to “only small cosmetic similarities.”
Finding that none of the allegedly infringed elements of Robinson’s song is worthy of copyright protection because the elements are too commonplace, lack originality or amount to scenes a faire, the court granted defendants’ motion to dismiss. Furthermore, the district court concluded that any amendment to the complaint would be futile because no change could alter the contents of the lyrics or song. The court therefore dismissed Robinson’s complaint with prejudice.
Summary prepared by Tal Dickstein and Kyle Petersen