On April 25, 2022, the United States Supreme Court declined to hear a case concerning how different federal circuits analyze copyright infringement cases. The case that made its way to the steps of the U.S. Supreme Court dealt with the allegation that Josh Groban’s hit song, “You Raise Me Up,” copied the Icelandic hit song, Söknuður. This lawsuit originated in a federal district court in the Central District of California on April 3, 2020.
In the federal district court, Johannsongs-Publishing, Limited, owner of the musical composition of the 1977 Icelandic hit, alleged that the defendants, Rolf Lovland and Brendan Graham, who wrote the song “You Raise Me Up,” which was later released by Josh Groban, copied their hit song. The defendants filed a motion for summary judgment. Subsequently, the trial judge determined whether the two songs were substantially similar under the extrinsic test, a test commonly applied within the Ninth Circuit. The test analyzes various compositional elements between two songs, “including melody, harmony, rhythm, timbre, structure, instrumentation, meter, tempo, and lyrics,” to determine any substantial similarities. After looking at the defendants’ expert report, the judge determined that the defendants’ expert correctly applied the extrinsic test and expelled any possibility of substantial similarities between the two works citing a lack of similarity in the harmonic, structural, rhythmic, and melodic elements of the songs. In contrast, the judge declined to consider the plaintiff’s expert report due to its failure to apply “reliable principles and methods to the facts” necessary under the federal rules of evidence and to filter out similarities attributable to older songs that belong to the public domain.
Author’s Note: There is no basis for the judge to have required the latter. Everything has been done before. If you “filter out” older songs, there is never anything left to compare. This is an unfair and unreasonable requirement.
The judge ultimately found that any remaining similarities between the two songs were either unprotectable as they came from much older songs which now belong to the public domain or were too few and far between to amount to any copying. The judge consequently granted the defendants’ motion for summary judgment.
On appeal to the Ninth Circuit on November 29, 2021, Johannsongs-Publishing, Limited argued to the panel of Ninth Circuit judges that they should abandon the “extrinsic-intrinsic test” and instead apply the “ordinary observer test” utilized by the Second Circuit. The “ordinary observer test” looks at what similarities an average person could spot between two works. They also argued that the district court made a mistake by admitting only the defendants’ expert report. The Ninth Circuit declined to abandon the extrinsic-intrinsic test and reaffirmed the district court’s decision to exclude the plaintiff’s expert report due to their expert’s failure to filter out similarities between the two songs which were attributable to older songs that belong to the public domain.
Following the Ninth Circuit’s decision, Johannsongs-Publishing, Limited asked the Supreme Court to hear their case. In their petition, they argued that had the federal district court judge followed the Second Circuit’s “ordinary observer test,” they would have been able to survive summary judgment. Additionally, they argued that federal courts across the United States are divided on the issue of how to analyze the similarities between two works in a copyright infringement case and that this is the perfect case to resolve the differences within the federal circuits.
Author’s Note: That is absolutely correct.
Nevertheless, the United States Supreme Court declined to hear their case, and all of these legal issues remain intact to fight another day.
Johannsongs-Publishing, Limited is represented by Michael Machat of Machat & Associates P.C.
Loveland, Graham, and the other plaintiffs are represented by Ava Badiee, Tal Dickstein, and Barry Slotnick of Loeb & Loeb LLP.
The case is Johannsongs-Publishing, Ltd. v. Peermusic, Ltd., et al., case number 21-1196, in the United States Supreme Court.
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