On November 29, 2021, a Ninth Circuit panel agreed with a lower court in putting an end to a copyright case over “You Raise Me Up,” saying major record labels and Spotify did not transform a 1977 hit from Iceland into the chart-topper sung by Josh Groban.
The panel turned down arguments from Johannsongs-Publishing Ltd., a company founded by composer Jóhann Helgason, that sought to revive a 2018 lawsuit that claimed the 2002 song “You Raise Me Up” was “97% similar” to a song Helgason co-wrote called “Söknuður.”
“‘Söknuður’ and ‘You Raise Me Up’ are not substantially similar and most of their similarities are attributable to the prior art,” the panel wrote in an unsigned and unpublished opinion, citing a report the music companies had gotten from New York University professor and pianist Lawrence Ferrara.
Covers of the record “You Raise Me Up,” initially recorded by the Irish-Norwegian pop duo Secret Garden, had been performed by many singers including Josh Groban, Susan Boyle, Johnny Mathis, Kenny G, the Tabernacle Choir at Temple Square, and the Irish boy band Westlife. Both Groban and Westlife’s versions were extremely popular; with Groban topping Billboard’s adult contemporary chart in 2004 and Westlife’s version reaching No. 1 in the U.K a year later.
Plaintiff pointed to a version of the “Söknuður” record that was used by Icelandair as boarding music between 1992 and 1996. Some of the artists, Plaintiff claimed, made trips to Iceland during this time and must have heard the song then. Thus, Plaintiff contended that defendants had access to the song and knew of its existence, an element that is required to establish copyright infringement.
Plaintiff hinged its copyright infringement claims on a report from musicologist Judith Finell, a familiar name in music copyright lawsuits. Previously, Finell was the primary expert used by the estate of Marvin Gaye in its high-profile case against Robin Thicke and Pharrell Williams over their hit song “Blurred Lines.” The Estate of Marvin Gaye won that case. The report by Finell established that “Söknuður” and “You Raise Me Up” are “substantially similar in their melodic pitches due to the shared use of the same underlying skeletal pitches.” However, Finell’s opinions were thrown out.
U.S. District Judge, the honorable André Birotte Jr. agreed with Ferrara’s opinion instead that any similarities the songs shared were derivative of an even older tune: the Irish folk song “Londonderry Air,” which is known most for being used in the 1913 song “Danny Boy.” That song, fortunately for the record labels, is in the public domain and not protected by copyright law. Thus, anyone can use the work without obtaining permission, and no one can ever own the intellectual property from “Danny Boy.”
Johannsongs is represented by Michael Machat of Machat & Associates PC.
The record labels are represented by Barry I. Slotnick, Tal Dickstein, and Ava Badiee of Loeb & Loeb LLP.
The case is Johannsongs-Publishing Ltd. v. Lovland et al., case number 20-55552, in the U.S. Court of Appeals for the Ninth Circuit.
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