The Weeknd Clears Two Copyright Hurdles
Steven T. Lowe
On July 22, 2020, in what has become a busy summer of copyright litigation for pop artist, The Weeknd, Judge Percy Anderson of the United States District Court for the Central District of California dismissed a copyright infringement lawsuit filed by three UK songwriters over The Weeknd’s 2016 song, “A Lonely Night.”
On April 3, 2019, plaintiffs William Smith, Brian Clover, and Scott McCulloch first filed, and then on September 26, 2019, later amended a complaint alleging that The Weeknd copied their 2005 song entitled, “I Need to Love.”
Traditionally, to prove that copying did indeed occur, a plaintiff must establish that a defendant had access to the plaintiff’s work and that both works in question are “substantially similar.” Otherwise, a plaintiff can still prove that copying occurred by demonstrating that a defendant’s work product is so “strikingly” similar to the plaintiff’s that it cannot conceivably be created from independent efforts.
Here, the plaintiffs contended that a producer for the UK company, Life Music Limited, uploaded their song to the company’s database, thereby providing music industry executives the ability to search through a music catalog using keywords and genre searches. In addition, the plaintiffs attached a musicologist report, which revealed remarkable resemblances between “I Need to Love” and “A Lonely Night.”
In June 2020, The Weeknd filed a motion to dismiss, arguing that the plaintiffs only asserted an “attenuated” theory about how “I Need to Love”— which was never publicly performed or released by any record company— was accessed or copied “eleven years later by a song created a continent and ocean away, in Los Angeles.” Furthermore, The Weeknd argued that any portions of melody that can be considered similar actually appear in hugely popular songs such as Blondie’s 1978 hit, “Heart of Glass,” and the theme song to the 1999 James Bond blockbuster, “The World is Not Enough,” which both predate the creation of the plaintiffs’ tune. The Weeknd’s musicologist declared that after removing elements that are found in prior art, the melodic similarity that remains between “I Need to Love” and “A Lonely Night” is only three fragmentary pitches.
However, this attempt to attack a claim of copyright infringement based upon “prior art” is unprecedented, in this author’s opinion. Prior art is a concept applicable in patent law, not copyright law. That is because copyright law only requires a work to have a minimal degree of creativity to be “original,” and therefore qualify for copyright protection. The fact that a musical phrase may contain elements from prior works is effectively irrelevant where the plaintiff’s work is sufficiently original. In this case, there was no dispute that the plaintiffs’ work was sufficiently original. Defendants will have an easy time defeating music infringement claims if all they have to do is find the musical phrase in a prior song. No plaintiff will ever be able to win an infringement claim if this new requirement of defeating all “prior art” is placed upon plaintiffs.
In his July 2020 order, Judge Percy Anderson was unpersuaded by the plaintiffs’ case for “access” and “substantial similarity,” and thus sided with The Weeknd.
The Judge first determined that, based upon the allegations of the complaint, “there is no reasonable inference for anything more than a ‘bare possibility’ that Defendants accessed ‘I Need to Love.’” Then addressing the issue of substantial similarity, the Judge relied on the March 2020 Led Zeppelin decision in which the Ninth Circuit basically concluded that three consecutive notes are not protectable, no matter how important they might be to a work. Thus, determining that the similar notes in question were either “not protectable music conventions” or seen in prior compositions, Judge Percy Anderson concluded that the plaintiffs “failed to establish a triable issue of fact that the two works are ‘strikingly’ similar.” The district court therefore proceeded to dismiss the case.
Additionally, on June 1, 2020, The Weeknd settled a different copyright infringement lawsuit in which the experimental rock band, Yeasayer, claimed that “Pray For Me,” a 2018 collaboration between The Weeknd and Kenrick Lamar, stole elements from Yeasayer’s 2007 song, “Sunrise.”
In the court documents issued by the United States District Court in the Southern District of New York, United States District Judge Lorna G. Shofeild reported that Yeasayer had voluntarily dismissed their lawsuit and “confirmed to their satisfaction that no copyright infringement occurred.”
Clover, McCulloch and Smith are represented by James B. Glennon, Diana R. Lotfi, Thomas B. Orlando and Tracey A. Jordan of Foran Glennon Palandech Ponzi & Rudloff PC.
In its case, Yeasayer is represented by Scott Alan Burroughs and Laura M. Zaharia of Doniger Burroughs.
The Weeknd and other defendants are represented by Peter Anderson, Nicolette Vairo and Adam I. Rich of Davis Wright Tremaine LLP.
The cases are Yeasayer LLC et al. v. Tesfaye et al., case number 1:20-cv-01608, in the U.S. District Court for the Southern District of New York, and William Smith et al. v. The Weeknd et al., case number 2:19-cv-02507, in the U.S. District Court for the Central District of California.