Known for her creativity and originality, Beyoncé was slammed with a $ 7 million lawsuit for one of her latest singles ‘XO’. The ‘Crazy in Love’ singer found herself facing a lawsuit by Ahmad Javon Lane, a singer, who claimed that Beyoncé allegedly infringed his song ‘XOXO’ after he gave a digital copy of the song to one of her background singers, Chrissy Collins. One of the main questions posed before Judge Paul A. Engelmeyer, District Judge, U.S. District Court of Southern District of New York, was whether the two songs were substantially similar and whether the ‘Queen Bey’ had infringed the plaintiff’s copyright in the song.
The facts of the case go as follows; on 20 June, 2013, the Plaintiff (“Plaintiff”) sent a digital copy of XOXO to Collins, a background singer of Beyoncé (“Defendant”). On 22 June, 2013 the Plaintiff got his claim registered with respect to the lyrics of the song with the U.S Copyright Office. According to the plaintiff ,there after the Defendant and certain other non-parties decided used his song to come up with ‘XO’. The Plaintiff further alleged that an agreement signed between him and the producer and owner of a “sequence 4-bar introduction” (“the Beat”) David Abisinito signed in May, 2014 gave him the exclusive rights over the Beat, in exchange for $150 and due credits for writing the said music. The Plaintiff filed a complaint pro se (party in person) for copyright infringement and sought $ 7 million in damages.
The Defendants countered this claim of the Plaintiff and sought the dismissal of the suit on a two point argument, i.e., (1) the Plaintiff does not have a standing to bring about the claim as he has failed to allege a valid copyright registration and (2) the two songs viz. XOXO and XO are not substantially similar.
With respect to establishment of copyright infringement the Court enumerated two important elements that needed to be proved: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original, Feist Publ’ns, Inc. v. Rural Telephone Serv. Co., 499 U.S. 340, 361 (1991)
The Court considering the arguments put forth by the Defendants analysed each argument and gave the following ruling.
(1)With respect to the standing before the Court: Under the Copyright Act, “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.” 17 U.S.C. § 411(a). In the case at hand, the Plaintiff had provided a copy of the copyright registration certificate, which clearly stated that the Plaintiff was the copyright claimant as to XOXO’s lyrics. The Plaintiff, however, did not claim infringement of XOXO’s lyrics, but only its music and the copyright certificate excluded rights to the music. The Plaintiff’s argument with regards to the music was that he had a standing to sue for its infringement because under the Production Agreement with Absintio, he was granted exclusive rights to use the Beat. The Court recognised the fact that “persons who have been granted exclusive licenses by owners of copyrights” have standing to sue for copyright infringement. Eden Toys, Inc. v. Florelee Undergarment Co., 697 F.2d 27, 32 (2d Cir. 1982). However, Lane had failed to allege that Abisinito, the owner of the Beat who licensed use of it to Lane, has a validly registered copyright in the Beat. Such an allegation is a prerequisite for bringing a copyright infringement claim. Lane’s copyright infringement claim was therefore dismissed for lack of standing. However according to the Court, the infirmities affecting Lane’s standing were ‘potentially correctable’. Thus, the plaint could not be dismissed on the basis of lack of standing before the Court.
(2)With respect to copyright infringement: Defendants argue that a copyright infringement claim here is, unavoidably, substantially deficient because there is no substantial similarity between XOXO and XO. According to the Court, a question regarding substantial similarity can be resolved as a matter of law if it concerns only non-copyrightable elements of the plaintiff’s work, or because no reasonable jury, properly instructed, could find that the two works are substantially similar.
In evaluating copyright infringement claims, courts have found the following elements, relevant here, to be non-copyrightable: (1) meter and tempo (2) a single note, (3) words and short phrases, such as titles or slogans, and (4) common rhythms, song structures, and harmonic progressions. As to substantial similarity, “an allegedly infringing work is considered substantially similar to a copyrighted work if the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same.” Boisson v. Banian, Ltd., 273 F.3d 262, 272 (2d Cir. 2001. However, “where a plaintiff’s work is not ‘wholly original,’ but rather incorporates elements from the public domain,” a “more discerning observer” test must be applied, wherein “the Court must look for substantial similarity between the allegedly infringing work and the original protected elements of the plaintiff’s creation,” McDonald, 2015 WL 5751197.
Here, the Second Amended Complaint (“SAC”) claimed that defendants infringed on XOXO by “using a sequence 4 bar introduction [i.e., the Beat] that was sampled at the beginning” of XO. It also alleges that XOXO and XO are substantially similar when viewed holistically. The Court evaluated, the Beat and the songs, to determine whether (1) their exist similarities between the two songs, with respect to the copyrightable parts of XOXO, and (2) a reasonable and properly instructed jury could conclude that there is substantial similarity.
a)With respect to the Beat, the Court held that the music structures of such kind are so commonplace that they are not protectable. Similarly, if any common 4 bar-phrase was found to be used in both the songs it would not establish substantial similarity.
b)With respect to the songs, the Court analysed the lyrics of both the songs and reached a conclusion that the two songs are nowhere similar in their lyrics and that where one i.e., XOXO (Plaintiff’s song) is all about describing “the narrator’s romantic and sexual feelings toward a new love interest,” on the other hand the song, XO (Defendant’s song) “expresses an uplifting celebration of love and life, emphasizing the importance of living in the present with a loved one ‘before our time has run out.”Further the Court found no lyrical similarity between the two songs apart from the fact that both the songs use ‘X’ and ‘O’ and that both are directed towards the love interest and observed that no reasonable jury could find the lyrics of XO and XOXO substantially similar.
Thus, the Court could not find any discernible similarities between the two songs and held that the Defendant had not infringed the copyright of the Plaintiff that subsisted in the song XO.
Authored by Ankita Dhar.