Copyright
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Attorneys for Ed Sheeran and his copyright accusers sparred before a Manhattan federal jury Tuesday morning, kicking off a closely-watched trial over whether his “Thinking Out Loud” infringed Marvin Gaye‘s famed “Let’s Get It On.”
With Sheeran himself watching impassively, attorney Benjamin Crump repeatedly told the jury to use their “common sense” to see that the pop star had stolen the “magic” from the earlier song.
“If you remember nothing else about this case, simply remember it is about giving credit where credit is due,” Crump said during his opening statement, occasionally speaking directly to Sheeran just feet away.
Teasing testimony that will unfold during the trial, Crump said he would show jurors “smoking gun” evidence: a much-debated video of Sheeran toggling between the two songs at a concert.
“That concert video is a confession,” Crump said.
Firing back for Sheeran was attorney Ilene Farkas, who told the jury during her own opening statements that Sheeran had “independently created” his song. And more importantly, she said, the only overlap with “Let’s” were his use of “exceedingly common musical building blocks” that cannot be “monopolized” by his accusers.
“Plaintiffs do not own them, because nobody does,” Farkas said. “All songwriters draw from this same basic toolkit.”
Ed Sheeran arrives at Manhattan Court to testify on the copyright trial where he is accused of copying Marvin Gaye’s song, in New York, United States on April 25, 2023.
Fatih Aktas/Anadolu Agency via GI
She said her clients had been “wrongly accursed of taking something they did not take,” and warned jurors that a verdict for Sheeran’s accusers would “change the what that songwriters are able to write.”
“We ask you not to let that happen,” Farkas told the jury.
Tuesday’s opening statements mark the start of a long-awaited trial in a copyright lawsuit filed way back in 2017 by heirs of Ed Townsend, Gaye’s longtime producer who co-wrote “Let’s Get It On,” over Sheeran’s “Thinking Out Loud” — a commercial and critical success that hit No. 2 on the Hot 100 before winning the Grammy Award for song of the year.
The case claims that Sheeran infringed copyrights by stealing the “heart” from one of the most “instantly recognizable songs in R&B history.” But the pop star’s lawyers say he simply used commonplace musical elements that are free for all to use.
The trial, taking place at the U.S. federal courthouse in Lower Manhattan, kicked off Monday with jury selection on Monday before actually getting under way with opening statements on Tuesday. Testimony is expected to run at least through Friday, meaning a verdict could arrive Friday or early the following week.
Testimony will continue on Tuesday afternoon, potentially with Sheeran himself taking the witness stand.
If found liable, Sheeran could be facing millions in potential damages. After a jury ruled that the 2013 megahit “Blurred Lines” had infringed Gaye’s “Got To Give It Up,” Robin Thicke and Pharrell Williams were ultimately ordered to pay a $5 million judgment, plus ongoing royalties from their song.
When Universal Music Group emailed Spotify, Apple Music and other streaming services in March asking them to stop artificial-intelligence companies from using its labels’ recordings to train their machine-learning software, it fired the first Howitzer shell of what’s shaping up as the next conflict between creators and computers. As Warner Music Group, HYBE, ByteDance, Spotify and other industry giants invest in AI development, along with a plethora of small startups, artists and songwriters are clamoring for protection against developers that use music created by professionals to train AI algorithms. Developers, meanwhile, are looking for safe havens where they can continue their work unfettered by government interference.
To someday generate music that rivals the work of human creators, AI models use a process of machine-learning to identify patterns in and mimic the characteristics that make a song irresistible, like that sticky verse-chorus structure of pop, the 808 drums that define the rhythm of hip-hop or that meteoric drop that defines electronic dance. These are distinctions human musicians have to learn during their lives either through osmosis or music education.
Machine-learning is exponentially faster, though; it’s usually achieved by feeding millions, even billions of so-called “inputs” into an AI model to build its musical vocabulary. Due to the sheer scale of data needed to train current systems that almost always includes the work of professionals, and to many copyright owners’ dismay, almost no one asks their permission to use it.
Countries around the world have various ways of regulating what’s allowed when it comes to what’s called the text and data mining of copyrighted material for AI training. And some territories are concluding that fewer rules will lead to more business.
China, Israel, Japan, South Korea and Singapore are among the countries that have largely positioned themselves as safe havens for AI companies in terms of industry-friendly regulation. In January, Israel’s Ministry of Justice defined its stance on the issue, saying that “lifting the copyright uncertainties that surround this issue [of training AI generators] can spur innovation and maximize the competitiveness of Israeli-based enterprises in both [machine-learning] and content creation.”
Singapore also “certainly strives to be a hub for AI,” says Bryan Tan, attorney and partner at Reed Smith, which has an office there. “It’s one of the most permissive places. But having said that, I think the world changes very quickly,” Tan says. He adds that even in countries where exceptions in copyright for text and data mining are established, there is a chance that developments in the fast-evolving AI sector could lead to change.
In the United States, Amir Ghavi, a partner at Fried Frank who is representing open-source text-to-image developer Stability AI in a number of upcoming landmark cases, says that though the United States has a “strong tradition of fair use … this is all playing out in real time” with decisions in upcoming cases like his setting significant precedents for AI and copyright law.
Many rights owners, including musicians like Helienne Lindevall, president of the European Composers and Songwriters Alliance, are hoping to establish consent as a basic practice. But, she asks, “How do you know when AI has used your work?”
AI companies tend to keep their training process secret, but Mat Dryhurst, a musician, podcast host and co-founder of music technology company Spawning, says many rely on just a few data sets, such as Laion 5B (as in 5 billion data points) and Common Crawl, a web-scraping tool used by Google. To help establish a compromise between copyright owners and AI developers, Spawning has created a website called HaveIBeenTrained.com, which helps creators determine whether their work is found in these common data sets and, free of charge, opt out of being used as fodder for training.
These requests are not backed by law, although Dryhurst says, “We think it’s in every AI organization’s best interest to respect our active opt-outs. One, because this is the right thing to do, and two, because the legality of this varies territory to territory. This is safer legally for AI companies, and we don’t charge them to partner with us. We do the work for them.”
The concept of opting out was first popularized by the European Union’s Copyright Directive, passed in 2019. Though Sophie Goossens, a partner at Reed Smith who works in Paris and London on entertainment, media and technology law, says the definition of “opt out” was initially vague, its inclusion makes the EU one of the most strict in terms of AI training.
There is a fear, however, that passing strict AI copyright regulations could result in a country missing the opportunity to establish itself as a next-generation Silicon Valley and reap the economic benefits that would follow. Russian President Vladimir Putin believes the stakes are even higher. In 2017, he stated that the nation that leads in AI “will be the ruler of the world.” The United Kingdom’s Intellectual Property Office seemed to be moving in that direction when it published a statement last summer recommending that text and data mining be exempt from opt-outs in hopes of becoming Europe’s haven for AI. In February, however, the British government put the brakes on the IPO’s proposal, leaving its future uncertain.
Lindevall and others in the music industry say they are fighting for even better standards. “We don’t want to opt out, we want to opt in,” she says. “Then we want a clear structure for remuneration.”
The lion’s share of U.S.-based music and entertainment organizations — more than 40, including ASCAP, BMI, RIAA, SESAC and the National Music Publisher’s Association — are in agreement and recently launched the Human Artistry Campaign, which established seven principles advocating AI’s best practices intended to protect creators’ copyrights. No. 4: “Governments should not create new copyright or other IP exemptions that allow AI developers to exploit creators without permission or compensation.”
Today, the idea that rights holders could one day license works for machine-learning still seems far off. Among the potential solutions for remuneration are blanket licenses something like the blank-tape levies used in parts of Europe. But given the patchwork of international law on this subject, and the complexities of tracking down and paying rights holders, some feel these fixes are not viable.
Dryhurst says he and the Spawning team are working on a concrete solution: an “opt in” tool. Stability AI has signed on as its first partner for this innovation, and Dryhurst says the newest version of its text-to-image AI software, Stable Diffusion 3, will not include any of the 78 million artworks that opted out prior to this advancement. “This is a win,” he says. “I am really hopeful others will follow suit.”
The rapper Cam’ron is facing a copyright lawsuit over allegations that he used a 2003 image of himself on t-shirts, jewelry and a slew of other merchandise sold by his Dipset Couture – all without any kind of license from the original photographer.
In a complaint filed Tuesday (April 11) in New Jersey federal court, photographer Djamilla Cochran claimed the “Hey Ma” rapper (real name Cameron Giles) splashed her image — a shot of Cam wearing a fuzzy pink coat and hat while holding a matching flip phone — across a wide range of Dipset products.
She says he also repeatedly posted the image to Instagram to promote those products, which also included shower curtains, pillows, swimsuits, socks and even a birthday cake. The complaint came with numerous screenshots of Dipset Couture’s product listings and Cam’ron’s posts promoting them.
And, according to the lawsuit, Cam’ron was alerted numerous times that he was using the image without a license.
“Getty Images notified defendants of their infringing activities by mail and email on multiple occasions,” Cochran’s lawyers wrote. “Despite those notifications, defendants continued to sell merchandise and continued to display the photograph on website and accounts.”
Reps for Cam’ron did not immediately return a request for comment.
Cochran’s image (featured above) captured Cam’ron at the Mercedes-Benz Fashion Week Show in New York in 2003, wearing a flashy color that would become a key part of his brand identity. In 2016, GQ magazine used the photo atop an article titled “Cam’ron Is Very Particular When It Comes to the Color Pink,” saying that the rapper had “defined himself with an iconic pink mink coat” at that fashion show.
While it might sound unfair to a celebrity, the copyrights to a photo are almost always retained by the person who snapped it. Being featured in an image doesn’t grant someone a right to use it for free, and certainly not on commercial merchandise.
That’s not a new dilemma for stars. Over the last few years, Miley Cyrus, Dua Lipa, Justin Bieber, Ariana Grande, Emily Ratajkowski, LeBron James, Katy Perry and others have all faced copyright cases after they re-used photos of themselves snapped by someone else.
But the lawsuit against Cam’ron is potentially more serious than those earlier cases, which mostly dealt with stars just reposting an image on social media. His alleged unauthorized use of Cochran’s image on numerous commercial products, even after he was allegedly warned to stop, could leave him facing more substantial damages.
According to screenshots included in the lawsuit, Cam’ron had been doing so for years. Instagram posts from his mr_camron handle dating back as far as 2014 show Cochran’s image, including on skateboards, facemasks and reposted in full.
When the Rolling Stones released “Living In A Ghost Town” in 2020, a lot had changed in the eight years since the legendary rock band had last put out a new song. Streaming music had become dominant, the UK had exited the European Union and a global pandemic had taken grip.
It had also seemingly become more common for the creators of hit songs to face lawsuits. In the wake of a multimillion-dollar verdict in 2015 against Robin Thicke and Pharrell Williams over “Blurred Lines,” a slew of major stars had faced similar copyright infringement cases over some of their biggest hits – including Taylor Swift, Katy Perry, Ed Sheeran, The Weeknd, Justin Bieber and Dua Lipa.
So it should have perhaps come as no surprise to Mick Jagger and Keith Richards when, last month, they were hit with a lawsuit claiming they’d illegally borrowed key parts of “Ghost Town.” Sergio Garcia Fernandez, who performs under the name Angelslang, alleged that they had “misappropriated many of the recognizable and key protected elements” from his 2006 song “So Sorry,” as well as his 2007 tune “Seed of God.” (Read the full complaint here.)
But such lawsuits, while plentiful, often face long odds. In just the past month, similar song-theft cases against Donald Glover (over his Childish Gambino chart-topper “This Is America”) and Nickelback (over the band’s 2005 hit “Rock Star”) have both been dismissed at the earliest stage of litigation. In Glover’s case, a federal judge ruled last week that the lyrics of the two songs were “entirely different.” In Nickelback’s dispute, another federal judge ruled the week prior that the case at times “borders on the absurd.”
And, according to legal and music experts, the new lawsuit against the Stones likely faces a similar fate.
“Living in a Ghost Town,” a blues-rock tune with some reggae vibes, does sound similar to “So Sorry” and “Seed of God.” Fernandez claims that’s because the new song borrowed key features from his songs, including the “vocal melodies, the chord progressions, the drum beat patterns, the harmonica parts [and] the electric bass line parts.”
But according to Joe Bennett, a forensic musicologist and a professor at Berklee College of Music, “Ghost Town” flatly does not include those elements from Fernandez’s songs. Full stop.
“It simply doesn’t,” Bennett says. “These elements are not the same when compared — all the notes and chords are very obviously different. It’s significant that the complaint doesn’t contain any music notation, because a simple side by side transcription would demonstrate the dissimilarity.”
So then why do the songs sound similar? Bennett says it’s because they share an overall vibe – based on mid-tempo rock grooves in the key of A minor – that’s been ubiquitous in rock and blues since the beginning. Without much digging, he pointed to at least four other songs that sound pretty similar, including B.B. King’s rendition of the “The Thrill Is Gone.” But those commonplace musical tropes cannot be monopolized by one band under copyright law.
“The similarities we hear aren’t protectable elements, and certainly not the intellectual property of Mr. Fernandez,” Bennett said. “The Stones didn’t copy from Fernandez, because they didn’t need to; they’ve been playing grooves like this for a very long time, as have many others.”
Beyond such musical problems, the case against the Stones also potentially suffers from a simpler legal flaw.
In any copyright lawsuit, an accuser needs to show that the alleged infringer had “access” to their work in order to copy it. In cases involving big songs – like in the looming trial against Sheeran over Marvin Gaye’s iconic “Let’s Get It On” – a plaintiff can easily argue that the song was so widely-available that the defendant obviously heard it. But the case against the Stones involve songs of far less renown; when the lawsuit was first filed, the allegedly-copied “So Sorry” listed less than 1000 streams on Spotify.
Faced with that situation, Fernandez instead aimed to directly show how the Stones might have heard the song. In his complaint, his lawyers wrote that he gave a demo CD to “an immediate family member” of Jagger, who then allegedly confirmed in writing that the songs had “a sound The Rolling Stones would be interested in using.”
But according to James Sammataro, a veteran copyright litigator and the co-chair of the music group at at the law firm Pryor Cashman, those arguments fall well short of what’s required under law.
He noted that the complaint “conspicuously” failed to name that family member, and also did not directly claim that they had actually handed the song off to Jagger or had been involved in creating “Ghost Town.”
“A charitable read of the complaint is that plaintiff purportedly gave his demo to a family member of Jagger who might have passed along the demo to Jagger, but that plaintiff have no idea whether it actually happened,” Sammataro wrote. “Such speculative allegations are far too attenuated to infer a reasonable possibility of access. If there was a strong claim of access, the plaintiff would have presumably pled it.”
A Manhattan federal judge has dismissed a lawsuit accusing Donald Glover of ripping off his chart-topping Childish Gambino hit “This Is America” from an earlier song, ruling that the two tracks are “entirely different.”
A rapper named Kidd Wes (real name Emelike Nwosuocha) sued in 2021, claiming Glover’s 2018 song was “practically identical” to his own 2016 called “Made In America.” But in a decision issued Friday (March 24), U.S. District Judge Victor Marrero said they were anything but.
“A cursory comparison with the challenged composition reveals that the content of the choruses is entirely different and not substantially similar,” the judge wrote.
In reaching that conclusion, Judge Marrero briefly explained how Nwosuocha’s lyrics were a “short, simple, self-aggrandizing proclamation,” while Glover’s song was about “what America means and how it is perceived.”
“More could be said on the ways these songs differ, but no more airtime is needed to resolve this case,” the judge wrote.
Released in 2018, “This Is America” spent two weeks atop the Hot 100 and eventually won record of the year and song of the year at the 61st Annual Grammy Awards. It was accompanied by a critically acclaimed music video, directed by Hiro Murai, that touched on issues of race, mass shootings and police violence.
Nwosuocha sued in May 2021, claiming there were “unmissable” similarities between the song and his own “Made In America,” including the “flow” — the cadence, rhyming schemes, rhythm and other characteristics of hip hop lyrics.
“The distinctive flow employed in defendant Glover’s recorded performance of the infringing work’s chorus … is unmistakably substantially similar, if not practically identical, to the distinct and unique flow that was employed by Nwosuocha,” his lawyers wrote at the time.
But in Friday’s decision, Judge Marrero said the “flow” and other similar characteristics “lack sufficient originality” to be protected by copyrights. And “no reasonable jury” could find that the lyrics themselves were similar enough to constitute copyright infringement, the judge said.
The judge also ruled that the case failed for an even simpler reason: That Nwosuocha had failed to secure a federal copyright registration for the underlying composition to his song. “Accordingly, dismissal of Nwosuocha’s complaint is warranted.”
In a statement to Billboard, Nwosuocha’s attorneys Imran H. Ansari and La’Shawn N. Thomas said their client was “understandably disappointed” and considering appealing the ruling. “He stands by his music, creativity, and the independence of grassroots artists to create their own music, and receive credit where credit is due, without the fear of it being apportioned by another.”
An attorney for Glover did not immediately return a request for comment on the decision.
Post Malone has reached an apparent settlement with a musician who claims he helped create the smash hit “Circles,” ending a contentious lawsuit minutes before a jury trial was set to begin.
Tyler Armes sued in 2020 over allegations that he and Malone co-wrote the song during an all-night jam session in 2018, but that the superstar refused to give him credit. Malone strongly denied the allegations, and a hotly-anticipated trial was set to kick off Tuesday (March 21) in Los Angeles federal court.
But in an abrupt turn of events, U.S. District Judge Otis D. Wright indicated Tuesday morning that a settlement had been reached to avert trial.
Just before a jury was to be selected, the judge jokingly waved goodbye to assembled media and cleared the courtroom. Staffers could later been seen removing musical equipment from the courtroom that had been prepared for the pending trial, and Armes himself was eventually seen leaving. A deputy court clerk later confirmed to Billboard a settlement had been reached.
The terms of the agreement have not been publicly disclosed, and neither side’s attorneys immediately returned a request for comment.
Armes, best known as a member of the Canadian rap-rock band Down With Webster, sued Malone in 2020, claiming he had played a key role (along with Malone and collaborator Frank Dukes) during an August 2018 all-nighter that led to the creation of “Circles.” That allegation was no small thing, because the song was eventually a smash hit, spending three weeks atop the Hot 100 and ultimately spending 61 weeks on the chart.
After the “Circles” was released and Armes reached out to complain, he claimed that Malone offered to give him a 5% share of the publishing royalties. But when he tried to negotiate for a better deal, he says the star’s people revoked the offer and refused to give him anything.
Malone (real name Austin Richard Post) strongly denied the allegations, arguing that Armes “did not write or author any portion of the ‘Circles’ composition” and that he was simply trying to get an undeserved cut from a lucrative song.
“It is an age-old story in the music business that when a song earns the type of runaway success that ‘Circles’ has garnered, an individual will come out of the woodwork to falsely claim to take credit for the song, and demand unwarranted and unearned windfall profits from the song,” Post’s lawyers wrote. “This lawsuit arises from such a story.”
Last year, Judge Wright refused to dismiss Armes’ allegations, ruling that he might ultimately be able to persuade a jury that he deserved to own a piece of “Circles.” If the jury believed Armes, the judge said, they could find that Malone, Dukes and Armes “shared equal control in the session, making nonhierarchical contributions to a unitary whole.”
That set the stage for a trial set to kick off on Tuesday, which had been expected to run through the end of the week.
When musician Tyler Armes first heard Post Malone’s “Circles” in 2019, he claims he immediately texted Dre London, Malone’s manager. In the texts, Armes claimed he had been in the studio on the August 2018 night the song had come together – and that he believed he had played a key role in creating it.
“I was not just someone hanging out in the room,” Armes texted, according to later legal documents. “I was part of the writing process. The entire song (minus the lyrics other than ‘circles’) was laid down that night with the 3 of us in the room together, working together.” A few days later, London allegedly responded: “Just showed Posty the message. He said he remembers. U played a tune on the bass then he played more of it after.”
“Circles” later became a smash hit. The song, “backed by sunny acoustic guitars, swirling percussion and infectious melodies,” reached the top spot on the Hot 100 for three consecutive weeks in November 2019 before ultimately spending 61 weeks on the chart.
But now, four years after those texts, Armes and Malone are headed to a Los Angeles federal courthouse this week for a closely-watched jury trial over that fateful night. Expected to feature testimony from the star himself, the trial will pose tricky questions to jurors – about who’s technically in charge during a studio jam session, and who exactly gets the resulting songwriting credits.
Lawyers for Armes say he clearly did enough to own part of the copyright to “Circles,” and that Malone’s “bad faith refusal” to grant him credit has severely harmed his music career. Malone’s lawyers, meanwhile, say the allegations are “utterly baseless” – and that Armes is just the latest plaintiff to “come out of the woodwork” seeking an “unearned windfall” from a hit song.
“Significant Contributions”
Armes, best known as a member of the Canadian rap rock band Down With Webster, filed his lawsuit in April 2020, seeking a ruling that he was the rightful co-creator of “Circles.” In addition to naming Malone (Austin Richard Post) as a defendant, the lawsuit also named “Circles” collaborator Frank Dukes and Universal Music Group.
In his complaint, Armes claimed he had gone to the studio that night at the urging of Malone’s people, and that Malone at one point had said explicitly: “Let’s write a tune!”
“From approximately 2:00 a.m. on August 8, 2018 until 9:00 a.m. that morning, Armes, Post and Dukes worked together in the studio,” his lawyers wrote in their complaint. “Armes and Dukes co-wrote the chords for the song on the keyboard, and Armes co-wrote and had significant input in the bassline for the song. Armes also had input on the guitar parts in the song, including co-writing the guitar melody which is played in the introduction to the song and which repeats throughout the song.”
After the song was released and Armes reached out, he says Malone offered to give him a 5 percent share of the publishing royalties. But when he tried to negotiate for a better deal, he says the star’s people revoked the offer and refused to give him anything.
“Defendants’ refusal to credit Armes … has resulted in significant harm to Armes’ reputation, career and cost him a host of opportunities,” his lawyer wrote. “Songwriters and composers work their entire lives to create a commercially successful and critically acclaimed song like [‘Circles’].”
Read Armes’ entire complaint here.
“Unearned Windfall”
On the same day that Armes filed his lawsuit, Malone sued him right back – asking a federal judge for a ruling that Armes “did not write or author any portion of the ‘Circles’ composition, and he is not entitled to any of the revenue from the ‘Circles’ composition.”
Malone’s lawyers admitted that Armes had been in the room that night, but said he had not made any serious contributions to the song. And they pointed out that the star and other writers then held subsequent sessions in which they continued to work on the song without Armes present.
“It is an age-old story in the music business that when a song earns the type of runaway success that ‘Circles’ has garnered, an individual will come out of the woodwork falsely claim to take credit for the song, and demand unwarranted and unearned windfall profits from the song,” Malone’s lawyers wrote. “This lawsuit arises from such a story.”
In later motions seeking to end the case without a trial, Malone’s attorneys argued more specifically about the “fatal flaws” in Armes’ allegations. They said his contributions to the song were merely commonplace musical building blocks like chord progressions, meaning they were not sufficiently “original” to be protected by copyright law. And they said that he had not exercised enough “control” over the studio session to count as a co-author.
“Armes admitted he had no control over whether any of his creative suggestions would be incorporated by Post and Dukes into the ‘Circles’ composition,” Malone’s lawyers wrote. “Armes’s contention that because he was present for one early session while Dukes and Post were creating the ‘Circles’ composition … and because he played some instruments there and offered some verbal musical suggestions, he is entitled to joint authorship, is simply incorrect under governing law.”
Read Malone’s entire argument here.
“Shared Equal Control”
Those arguments didn’t sway the judge. In April 2022, U.S. District Judge Otis D. Wright declined to end the case and instead sent it to trial, ruling that Armes might ultimately be able to persuade a jury that he deserved to own a piece of “Circles.”
As for the originality of Armes’s creative contributions, the judge said a jury might look beyond simple individual elements and instead analyze the song more broadly: “A reasonable juror could conclude that all three collaborators took part in these decisions and that the combination of these decisions created something that is not stock or commonplace, despite the fact that it may contain stock or otherwise uncopyrightable building blocks.”
And, just as importantly, the judge said it was unclear whether Malone and Dukes had sole control over what had been included in the song.
“While Dukes may have controlled the laptop, nothing suggests that he or Post possessed any special veto or decision-making power that Armes did not,” Judge Wright wrote in his ruling. “Armes’s evidence, if credited, supports the finding that the three musicians shared equal control in the session, making nonhierarchical contributions to a unitary whole.”
Read Judge Wright’s entire decision here.
“Make Swiss Cheese of Copyrights”
Ahead of the upcoming trial, Malone’s attorneys have sharply disputed one unusual aspect of Judge Wright’s ruling last year.
In the decision, the judge said the upcoming trial would technically only deal with the ownership of an unfinished “session” song created that August night, and not with the final “commercial” version of “Circles.” But he stressed that a verdict for Armes would still entitle him to substantial royalties from the hit song, since the final version was based on that earlier jam session tune.
A month later, Malone’s lawyers argued that Judge Wright’s approach was simply not how the creation of a copyrighted work is supposed to be analyzed. A final song is a final song, they said, and any earlier versions are merely part of the artistic process – not their own copyrighted creations.
“Splintering a single, final integrated work into many different ‘works’ at its various stages of creation would impermissibly make Swiss cheese of copyrights,” Malone’s lawyers wrote, quoting from a legal precedent that used that analogy. “Characterizing a single musical composition as derivative of its successive writing sessions preceding its final form raises the specter of an endless series of derivative works within one song.”
Lawyers for Armes argued back that the judge’s approach was just fine, and Judge Wright later brushed aside such critiques. But the “Swiss cheese” issue could very well arise again in the courthouse during this week’s trial – and, if Malone loses, will almost certainly serve as a key avenue for him to challenge the verdict at a federal appeals court.
The Courtroom Fight Ahead
The trial, taking place at the U.S. federal courthouse in downtown Los Angeles, will kick off with jury selection on Tuesday morning. It’s expected to run for four days, meaning we could expect a verdict on Friday or early next week.
Though a witness list hasn’t been published, it will likely include Armes, London, Dukes and various others involved in the events of the case, who will testify about what they recall about the session and the days surrounding it. Both sides will also call expert witnesses to testify about complicated technical questions about music and industry practices.
Malone himself will also be there. Back in August, during back-and-forth over potential trial dates, his lawyers confirmed that star will take the witness stand to help defeat Armes’ allegations: “He fully intends to appear to refute plaintiff’s claims.”
The star will be represented by David A. Steinberg, Gabriella N. Ismaj, Christine Lepera and Jeffrey M. Movit of the law firm Mitchell Silberberg & Knupp, an elite music litigation team whose members have defended Katy Perry, Dua Lipa, Jay-Z and other stars in similar cases.
Armes will be repped by Allison S. Hart and Kelsey J. Leeker from the law firm Lavely & Singer, a well-known Hollywood litigation boutique that has represented a slew of A-listers in defamation cases, contract disputes and other legal battles.
Two musicians who sued The Weeknd for allegedly stealing key elements of his “Call Out My Name” say they’ve reached a settlement with the superstar to end the lawsuit.
The case, filed by Suniel Fox and Henry Strange (real names Neil Fox Parakh and Shyhi Henry Hsaio), claimed that The Weeknd’s 2018 hit copied the lead guitar and vocal hooks from their 2017 song called “Vibeking.”
But in a filing Friday (March 17) in Los Angeles federal court, lawyers for Fox and Strange said they had “reached a settlement in principle of this action.” Terms of the agreement were not disclosed, and the notice said the two camps were “still in the process of formalizing, executing, and consummating” the deal.
Representatives and an attorney for The Weeknd (real name Abel Tesfaye) did not immediately return a request for comment on the purported deal.
“Call Out My Name,” off The Weeknd’s the 2018 EP My Dear Melancholy, debuted at No. 4 on the Hot 100. The track, featuring the “menacing themes fans came accustomed to earlier in his career,” eventually spent 18 weeks on the chart.
Fox and Strange, who claim to have worked previously with Drake, Kanye West, Lady Gaga, filed their copyright infringement lawsuit in September 2021, claiming that The Weeknd and co-writer Frank Dukes had stolen the “atmospheric and melancholic sound” of their earlier song.
“’Vibeking’ and ‘Call Out My Name’ contain quantitatively and qualitatively similar material in their respective lead guitar and vocal hooks, including melodic, harmonic, and rhythmic elements distinctive to ‘Vibeking’,” attorneys for the two producers wrote.
Unlike many copyright accusers, Fox and Strange claimed to have solid evidence that The Weeknd actually listened to their song — an important factor in any copyright lawsuit. They cited alleged emails in which they sent the track to The Weeknd’s playback engineer, who allegedly replied: “I sent [The Weeknd] that track u made a while ago. He listened and liked it. But nothing ever happened.”
In a later email cited by the accusers, the same engineer then told them: “Just gonna tell [The Weeknd] that our production team wrote the track. Cool? Or u have another idea? Just don’t wanna say ‘hey, [Strange] wrote this’ when he doesn’t know u.”
The Weeknd denied all of the allegations, but the litigation never progressed to the point that he had a chance to make in-depth arguments about the merits of the case.
More than a year after Cher sued Sonny Bono’s widow Mary Bono over royalties from “I Got You Babe” and other hits, a federal judge has issued an initial ruling refusing to dismiss the case.
Cher claims that her 1978 divorce deal with Sonny gave her a permanent 50% cut from songs written before they split, but that Mary recently stopped paying after she invoked copyright’s termination right. Mary’s attorneys say she was entitled to do so, and that the case should be dismissed.
In a split decision on Tuesday, U.S. District Judge John A. Kronstadt trimmed part of the case, saying any royalties from recording rights regained by Mary should stop going to Cher. But when it comes to the bigger question of the underlying musical compositions, the judge said the divorce agreement might entitle Cher to keep receiving those payments.
“The composition royalties appear to arise solely from the [divorce settlement],” the judge wrote. “On this record, it has not presently been established that [Cher]’s rights to the composition royalties have been terminated.”
In a statement to Billboard following the ruling, Mary’s attorney Daniel Schacht said: “We are happy that the court recognized some of the flaws in Cher’s case at this preliminary stage, and we look forward to resolving the remainder of the case.”
Cher’s attorney declined to comment on the decision.
Sonny and Cher started performing together in 1964 and married in 1967, rising to fame with major hits like “I Got You Babe,” “The Beat Goes On” and “Baby Don’t Go.” But the pair split up in 1974, finalizing their divorce with a settlement agreement in 1978. Under that deal, Sonny retained ownership of their music rights, but Cher was granted a half-share of all royalties.
Bono died in 1998 as the result of skiing accident, leaving Mary in control of those copyrights. And in 2016, she invoked the termination right — a provision of the federal Copyright Act that allows creators or their heirs to win back control of rights they signed away decades prior. Mary sent such notices to Sonny and Cher’s publishers, taking back full control of those copyrights.
Five years later, Cher filed her lawsuit — seeking a ruling the divorce agreement was still in effect and that she was still owed her 50% cut of royalties, regardless of who owns the copyrights now. Mary then fired back a few months later, arguing that the case should be dismissed. Her lawyers said that termination rights were designed to trump all pre-existing agreements, including a divorce agreement.
“Cher’s position would subvert Congress’ intent in enacting the copyright termination provisions: to ensure that authors and authors’ heirs, not grantees or ex-spouses, would benefit from the extended term of copyright,” Bono’s attorneys wrote in December 2021.
In Tuesday’s ruling, Judge Kronstadt denied that motion when it comes to the copyrights for Sonny’s underlying musical compositions, citing language in the divorce agreement that such royalties would be owed “from all sources perpetually.” Based on that language, the judge said the issue “cannot be resolved” until both sides have the chance to offer more evidence and arguments.
The judge did dismiss Cher’s lawsuit to the extent that it deals with royalties from any recording rights that had been terminated by Mary, since Judge Kronstadt said those provisions of the divorce agreement were tied to specific record deals that were no longer in existence. But the extent to which Mary’s termination notices actually went to record companies is unclear; earlier filings in the case only indicated that such notices has gone to publishers.
Read the entire decision here:
A federal judge on Thursday dismissed a copyright lawsuit claiming Nickelback ripped off its 2006 hit “Rockstar” from an earlier song called “Rock Star.”
Adopting recommendations from a lower judge, U.S. District Judge Robert Pitman ruled that there was zero evidence that Chad Kroeger and the other members of the 2000s rock band ever heard Kirk Johnston’s earlier song – and that the two songs also just didn’t share much overlap.
“Stated simply, they do not sound alike,” the judge wrote in the order adopted Thursday. “Where both songs evoke similar themes, they are rendered dissimilar through the vivid detail of the original expression in Nickelback’s lyrics.”
Johnston, the lead singer of a Texas band called Snowblind Revival, claimed the two songs shared many closely-related lyrics, about rock star lifestyles, making huge amounts of money, and having famous friends. But Thursday’s ruling said that after a review of the lyrics, that accusation at times “borders on the absurd.”
“This includes, for example, any suggestion that the two baseball analogies in Nickelback’s work are evidence that the band copied Johnston’s lyric ‘might buy the Cowboys’ professional football team simply because both are ‘references to sports’,” Judge Pitman wrote.
The only real similarities between the two songs, the judge wrote, were basic cliches — “outlandish stereotypes and images associated with being a huge, famous, rock star” – that cannot be monopolized by any one songwriter.
The judge specifically pointed to a study that reported 17 other popular songs that had shared similar themes about rock stars, ranging from “So You Want To Be A Rock And Roll Star” by The Byrds in 1966 to “Rockstar” by Poison in 2001.
Attorneys for both sides did not immediately return requests for comment on the decision.
Released on Nickelback’s 2005 album All the Right Reasons, “Rockstar” has not aged well with critics. In 2008, the Guardian said the song “makes literally no sense and is the worst thing of all time.” In 2012, Buzzfeed listed it as the second-worst song ever written, citing it as an example of “why everyone hates Nickelback so much.” But the song was a commercial hit, eventually reaching No. 6 on the Hot 100 in September 2007 and ultimately spending nearly a year on the chart.
Johnston sued in May 2020, claiming the hit song had stolen “substantial portions” of his own “Rock Star,” including the “tempo, song form, melodic structure, harmonic structures, and lyrical themes.”
But in Thursday’s ruling, Judge Pitman said Johnson had failed to show that Nickelback had “access” to his song in order to copy it – a key requirement in any copyright lawsuit. He argued that his band Snowblind Revival had performed at the same venue as Nickelback, but the judge said that was not enough.
“Johnston has presented no probative evidence that defendants had a reasonable opportunity to hear plaintiff’s work.
Without proof that Kroeger or anyone else heard the song, Johnston would have needed to prove that the songs were almost identical – “strikingly similar” in copyright law parlance. And Judge Pitman said he fell very far short of that.
“The Court has conducted a side-by-side examination of the works, carefully listening to and considering all versions of the songs of record,” the judge wrote. “As an ‘ordinary listener,’ the court concludes that a layman would not consider the songs or even their ‘hooks’ to be strikingly similar.”