On January 27, 2021, British songwriters Brian Clover and Scott McCulloch filed an appellate brief urging the Ninth Circuit to revive their copyright infringement suit accusing Canadian R&B singer “The Weeknd” of ripping off their 2005 song “I Need to Love” to record his 2016 song “A Lonely Night,” arguing that the “identical” melodies are sufficient to show that the song was copied.

Clover and McCulloch’s brief to the appellate court claims that the U.S. district court made a gigantic mistake by granting summary judgment in favor of The Weeknd, ruling that the songwriters failed to show that The Weeknd had access to the song to copy it.  The songwriters argue that the two songs are so “strikingly” similar that it is sufficient to show that the similarities are because of copying, and not “coincidence, independent creation, or prior common source.”

However, a music expert for the defendant found that the only similarities between “I Need to Love” and “A Lonely Night” are three isolated notes or pitches. The judge, pointing to the Ninth Circuit’s ruling in Skidmore v. Led Zeppelin to the effect that three notes are not protectable no matter how important to work, said that three isolated notes or pitches also cannot be protectable. However, Clover and McCulloch’s own music experts said that the melodies in the two songs have almost all the same pitches, and the two phrases of the song are all but identical.  The songwriters also argued that substantial similarity is a question for a jury.

Clover and McCulloch said that they finished recording “I Need to Love” in 2005 and Big Life Music bought the rights to shop the song and two others to a number of artists. Later, Big Life was bought by Universal Music Group in 2008.  In 2016, Universal told the songwriters that no one was interested in the songs and relinquished their claims to them. However, two weeks later, The Weeknd released its smash-hit album “Starboy,” which featured “A Lonely Night.”

Clover and McCulloch are represented by Thomas B. Orlando, James B. Glennon, and Diana Lotfi of Foran Glennon Palandech Ponzi & Rudloff PC.

The Weeknd and the other defendants are represented by Peter Anderson of Davis Wright Tremaine LLP.

The case is Clover et al. v. Tesfaye et al., case number 20-55861, in the U.S. Court of Appeals for the Ninth Circuit.

* Lowe & Associates (“The Firm”) is an entertainment and business law firm located in Beverly Hills, California. The firm has extensive experience handling cases involving copyright law, having provided top-quality legal services to its clients since 1991. The Firm is recognized for its many achievements, including successfully litigating many high-profile cases.

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