REBECCA FRANCESCATTI, ) ) Plaintiff, ) ) vs. )
STEFANI JOANNE GERMANOTTA ) p/k/a LADY GAGA, et al., ) ) Defendants. )
MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, District Court Judge:
Presently before us is a motion for summary judgment filed by Defendants Stephani
Joanne Germanotta p/k/a Lady Gaga (“Gaga”), Interscope Records, Universal Music Group, Inc. (“UMG”), DJ White Shadow, LLC (“DJWS, LLC”), and Brian Joseph Gaynor (“Gaynor”). Defendants contend that Plaintiff Rebecca Francescatti’s (“Francescatti”) music copyright infringement case should be dismissed because she cannot prove that (1) Defendants had access to and actually copied the protectable expression embodied in Francescatti’s song, and (2) Gaga’s song sounds substantially similar to Francescatti’s. (Def.’s Br. 1.) For the reasons discussed below, we grant Defendants’ motion because no reasonable trier of fact could find that the songs
are substantially similar.
Francescatti, a songwriter and performing artist who resides in Chicago, Illinois, is the author of her musical work titled “Juda” (“Francescatti Song”). (RSOF ¶¶ 2, 7.) Defendant
) Hon. Marvin E. Aspen )
¶ 10.) Defendant Gaga is a “well-known, popular media star performing under the name ‘Lady Gaga’” and created the song “Judas” (“Gaga Song”). (Id. ¶ 3.) Defendant DJWS, LLC is an Illinois limited liability company that was originally formed by Gaynor, DJ Paul Blair p/k/a DJ White Shadow (“Blair”), and Brian Lee (“Lee”). (Id. ¶ 6.) Defendant Interscope Records, a division of UMG, is the record company to which Gaga is signed and which released the Gaga Song and the album in which it appears, Born this Way. (SOF ¶ 4.) Francescatti contends that Gaga’s song “Judas” infringes upon Francescatti’s copyright in her song “Juda.” (Compl. ¶ 37.)
A. Defendants’ Motion to Strike
The parties have filed lengthy Local Rule 56.1 statements, and virtually all of the 122 statements of fact are disputed in whole or in part. Much of the forty additional statements of fact are disputed as well. Defendants also filed a motion to strike portions of Francescatti’s response to Defendants’ 56.1 Statement of Undisputed Facts. (Def.’s Mot. to Strike.)
The Local Rules “assist the court by organizing the evidence, identifying undisputed facts, and demonstrating precisely how each side proposed to prove a disputed fact with admissible evidence.” Bordelon v. Chi. Sch. Reform Bd. of Trustees, 233 F.3d 524, 527 (7th Cir. 2000) (quoting Markham v. White, 172 F.3d 486, 490 (7th Cir. 1999)). The Seventh Circuit has “consistently and repeatedly upheld a district court’s discretion” to require compliance with the Local Rules. Bordelon, 233 F.3d at 527 (citing Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1316 (7th Cir. 1995); Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994) (collecting cases)).
With one exception to a fact that concerns a glissando (RSOF ¶ 91), we have not relied -2-
We deny the motion to strike with regard to the remaining disputed facts because they are irrelevant to our decision. Thus, without getting caught up in this labyrinth of disputes, the basic facts are as follows. See Zimnicki v. Gen. Foam Plastics Corp., 09 C 2132, 2011 WL 5866267, at *1 (N.D. Ill. Nov. 22, 2011).
In 1998, Francescatti wrote a song entitled “Juda,” which she states is both about an acquaintance, Juda, whom she met while working at the Chicago Board of Trade and about her betrayal of her father. (Francescatti Dep. 138–140, 143, 173–74.) The song was registered with the Copyright Office initially in 1999 for guitar and voice. (Id. at 209:16–20.) Francescatti registered it again in 2005 after working with Gaynor on a new recording that added “drums, bass, strings, background vocals, sound mapping and samples (self made).” (SOF ¶ 10.)
In January 2010, Lee introduced Gaynor to Blair for the purpose of creating original material for Gaga to use in her Born This Way album. (RSAF ¶ 1.) On January 27, 2010, Blair
1In any event, this fact about the glissandos has no effect on the outcome of our decision. -3-
Meanwhile, Gaynor worked with Francescatti in April 2010 on material unrelated to the Francescatti Song. (RSAF ¶ 6.) In an email on May 1, 2010, Gaynor informed Francescatti that he had placed three tracks on Gaga’s next album and was being flown to meet Gaga in Paris. (Id. ¶ 8.) Then on June 9, 2010, Gaynor again emailed Francescatti stating that he had in fact met Gaga on his trip to Europe. (Id. ¶ 11.) He later recanted in a deposition, stating he lied to Francescatti to lead her on. (Id.) The parties therefore dispute whether Gaynor met Gaga on this trip. (SAF ¶ 8; RSAF ¶ 8.)
With respect to the Gaga Song, Nadir Khayat, professionally known as RedOne (“RedOne”), testified that he compiled much of its musical accompaniment in Stockholm, Sweden, prior to working with Gaga on the song in Amsterdam and in Paris. (RedOne Dep. 43:8–23, 46:1–5.) On May 9, 2010, Gaga decided on “Judas” as the title of the song because she missed her ex-boyfriend and thought of him as “Judas, he’s the betrayer of all things, you know, because Judas is the biblical betrayer of all things[.]” (SOF ¶ 9.) In addition to Gaga and
Throughout 2010 and early 2011, additional edits were made to the Gaga Song, which was ultimately published on April 23, 2011.2 (Gaga Dep. 103:22–104:2.) Also in April 2011, Blair and Gaynor worked on the Gaga Song “remix” (a version of a song that can be used “for a different purpose than the original song”). Blair and Gaynor worked on the Gaga Song remix and certain songs for the Born This Way album (Blair 30(b)(6) Dep. 60:18–61:19), Blair and Gaynor deny that they assisted with or discussed the original creation of the Gaga Song with Gaga or RedOne (SOF ¶ 116). According to Gaga, she first heard the Francescatti Song on July 19, 2012, after the Gaga Song was published. (Gaga Dep. 24:8–22.) The parties dispute whether Gaynor, in working with Blair on material for Gaga’s Born This Way album, exposed Gaga, either directly or indirectly through Blair, to the Francescatti Song. (SOF ¶¶ 114–16; RSOF ¶¶ 114–16.)
2Over the course of discovery, nearly twenty gigabytes of production and session files detailing the creation of the Gaga Song from the first recordings on May 9, 2010 through the song’s release have been produced. (SOF ¶
3Although the statement of facts states that both Blair and Gaynor worked on the remix, only Blair is mentioned in the cited See SOF ¶ 119 (citing Blair Dep. 30:2–23, 214:6–14).)
(SOF ¶ 119.)
B. Copyright analysis
“To establish copyright infringement, one must prove two elements: ‘(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.’” JCW Invs., Inc. v. Novelty, Inc., 482 F.3d 910, 914 (7th Cir. 2007) (quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S. Ct. 1282, 1296 (1991)). Because Francescatti is the
Defendants contend that they are entitled to summary judgment because Francescatti cannot show a reasonable possibility of access. (Def.’s Br. 26.) In support of this contention, they present evidence that neither Gaga nor Blair heard the Francescatti Song prior to this litigation. (Gaga Dep. 24:8–22; SOF ¶ 115.) In addition, Defendants present the testimony of Gaynor, who worked on the Francescatti Song, who attests that he did not give the Francescatti Song to either Blair or Gaga, that he never worked on the Gaga Song, and that he never had direct contact with Gaga. (SOF ¶¶ 18, 115–16; RSAF ¶ 11.) Defendants add that it was not until after the Gaga Song was published that Blair and Gaynor worked on its remix. (SOF ¶ 119.)
Proof of access is “an important component” of the circumstantial evidence supporting an inference of copying. Allen, 2009 WL 2178676, at *5 (citing Selle v. Gibb, 741 F.2d 896, 901 (7th Cir. 1984)). “As a threshold matter,” a plaintiff must prove access through “evidence which would establish a reasonable possibility that the accused work was available to the alleged
One way that a plaintiff can establish that a defendant had the reasonable opportunity to view the protected item is through proof of a “‘nexus’ between the alleged copier and the individual possessing knowledge of the creator’s work.” Le Moine v. Combined Commc’ns Corp., 95 C 5881, 1996 WL 332688, at *4 (N.D. Ill. June 13, 1996) (“Where there is a ‘close relationship’ or ‘nexus’ between the alleged copier and the individual possessing knowledge of the creator’s work, a reasonable probability of access may be inferred by the trier of fact.”); Meta-Film Associates, Inc. v. MCA, Inc., 586 F. Supp. 1346, 1357 (C.D. Cal. 1984).
Based on the nature and timing of the collaboration between Gaynor, Blair, and Gaga, a reasonable juror could find that there exists “nexus” between the parties and that therefore the Defendants had an opportunity to view the Francescatti Song. The nexus between the parties in
If a channel of communication between the person to whom the work is submitted (here, Gaynor) and the person who ultimately created the allegedly infringing work (here, Gaga) and “such channel involves a number of different people, each of whom (other than the original person to whom plaintiff submitted the work) denies knowledge of the work,” access is a reasonable, not a bare possibility. Nimmer § 13.02[A]. Furthermore, in a previous case where even the existence of such a channel of communication was denied by the defendant, but supported by some evidence from the plaintiff, we denied summary judgment based on our finding that plaintiff had established a reasonable possibility of access. Sanford, 594 F. Supp. at 713 (finding a reasonable possibility of access despite defendant CBS denying plaintiff’s allegations that he submitted his song to CBS’s office in Illinois, which then allegedly sent the tape to the CBS’s Los Angeles office at a time when CBS allegedly knew that defendant Michael Jackson was in contact with CBS and looking for a song to perform with Paul McCartney).
Here, Francescatti has come forward with facts concerning a channel of communication between Gaynor, Blair, and Gaga that surpasses the threshold of “mere conjecture or speculation,” thus giving rise to a reasonable possibility of access. Judges in this district have found access based on similar facts. In Allen, although (1) the creators of the Destiny Child’s
Defendants claim that Allen in fact supports Defendants’ position because whereas in Allen “it was undisputed that the third party actually came into contact with the defendants,” here, it is undisputed that the third party, Gaynor, “never came into contact with Gaga.” (Def.’s Reply 20 (emphasis added).) Defendants’ application of Allen to the facts of this case misses the mark. Here, it is Blair who is the third party. Gaynor worked on the Francescatti Song before collaborating with Blair for the purpose of providing music to Gaga for the Born This Way album, and Blair worked with Gaga on the same album. (SOF ¶ 10; RSAF ¶¶ 1, 31.) Accordingly, as in Allen, it is reasonably possible for Blair to have provided the Francescatti Song to Gaga before the Gaga Song was published on April 23, 2011.
Furthermore, despite Defendants’ statement to the contrary, it is not undisputed that Gaynor never came into contact with Gaga. (SAF ¶ 8; RSAF ¶ 8.) Whether there exists a direct nexus between Gaynor and Gaga depends on the credibility of the witnesses. Because courts are
*7 (denying summary judgment because whether the plaintiff “has established a reasonable possibility of access is a close call, the resolution of which
hinges entirely on the credibility of the witnesses”). Here, where Francescatti has attempted to impeach Defendants’ credibility, whether Gaynor came into contact with Gaga and whether Gaga heard the Francescatti Song before the Gaga Song was published, remain disputed. (RSOF
¶¶ 13, 25, 115–118; SAF ¶¶ 1–4, 8, 10–11); compare Selle, 741 F.2d at 903 (finding that plaintiff was unable to raise more than a speculation that the Bee Gees had access to his song where the “extensive testimony of the defendants and their witnesses describing the creation process went essentially uncontradicted, and there was no attempt even to impeach their credibility”) (emphasis added).
Defendants argue that because both Blair and Gaga deny knowledge of the Francescatti Song and Gaynor denies exposing both individuals to the song, Francescatti cannot avoid summary judgment merely by suggesting that Defendants’ evidence may not be believed. (Def.’s Reply 19 (citing Alvarez v. Industria del Amor, 98 C 1851, 1999 WL 498610, at *3 (N.D. Ill. July 9, 1999). We agree. Francescatti, however, comes forward with more evidence than just “merely” suggesting that Defendants’ evidence is not to be believed. Francescatti offers specific, undisputed evidence about Gaynor, Blair, and Gaga’s collaboration on the Born This Way album and the sequence of events surrounding the creation of the Gaga Song before it was published in 2011.
Allen, 2009 WL 2178676, at
1We reiterate that whether Defendants availed themselves of the opportunity to view the protected work is a question that goes not to the issue of access, but rather the ultimate issue of copying. Nimmer § 13.02[A]. At the summary judgment stage, Francescatti’s burden is not to show that Gaga absolutely heard the Francescatti Song or that she absolutely had the opportunity to hear the song, but rather, to show with all factual inferences drawn in Francescatti’s favor, that there is a genuine issue of material fact as to whether Defendants had the “reasonable opportunity” to hear the Francescatti Song before creating the Gaga Song. Whether Gaynor, Blair, and Gaga are credible witnesses would be a question of fact for the trier of fact to decide. Allen, 2009 WL 2178676, at *7.
2. Substantial Similarity
Although summary judgment is not favored on the question of substantial similarity in copyright cases, it is appropriate where no reasonable trier of fact could find substantial similarity in the protected expression of the disputed works. Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042, 1045 (9th Cir. 1994); FASA Corp. v. Playmates Toys, Inc., 869 F. Supp. 1334, 1353 (N.D. Ill. 1994). At the summary judgment stage, we are well-suited to determine whether a reasonable trier of fact could find that there is substantial similarity of protectable elements between the two songs. Shaw v. Lindheim, 919 F.2d 1353, 1361 (9th Cir. 1990); Apple Computer, Inc. v. Microsoft Corp., 799 F. Supp. 1006, 1020 (N.D. Cal. 1992) order clarified, C-88-20149-VRW, 1993 WL 207982 (N.D. Cal. Apr. 14, 1993).
With regard to the degree of similarity that must be proved in this case, Defendants suggest that we apply the inverse ratio rule, in which weak evidence of access requires a higher standard of proof for similarity. (Def.’s Br. 6.) Because the Seventh Circuit has explicitly declined to endorse the inverse ration rule, we too decline to adopt this proposition. Peters v. West, 692 F.3d 629, 635 (7th Cir. 2012) (“Once a plaintiff establishes that a defendant could have copied her work, she must separately prove—regardless of how good or restricted the opportunity was—that the allegedly infringing work is indeed a copy of her original.”). The
Defendants assert that Francescatti’s copyright claim fails to satisfy the substantial similarity requirement because (1) the two songs do not sound substantially similar, and (2) Francescatti’s claims are based on nonprotectable elements.
a. Overview of the substantial similarity standard
Substantial similarity is determined by inquiring: “(1) whether the defendant copied from the plaintiff’s work and (2) whether the copying, if proven, went so far as to constitute an improper appropriation.” Atari, Inc. v. North American Philips Consumer Electronic Corp., 672 F.2d 607, 614 (7th Cir. 1982) (citing Arnstein v. Porter, 154 F.2d 464, 468 (2d Cir. 1946)). Because experts consider substantial similarity to be one of the most difficult questions in copyright law, Nimmer § 13.03[A], we briefly review how substantial similarity fits into the broader copyright analysis.
To prevail on a copyright claim, a plaintiff must prove (1) a valid copyright,
and (2) illicit copying. To prove illicit copying, he must establish both
(1) copying, and (2) unlawful appropriation. To establish copying, a plaintiff
must show (1) access, and (2) substantial similarity between the works when
compared in their entirety including both protectible and unprotectible
material. Finally, to show unlawful appropriation (i.e., substantial similarity
Copying as an element of a copyright claim refers to the ultimate legal issue of unlawful appropriation, i.e. whether the defendant violated the copyright laws by reproducing protectable expression from the plaintiff’s work. Stillman, 720 F. Supp. at 1357; see Rockford Map Publishers, Inc. v. Directory Serv. Co. of Colo., Inc., 768 F.2d 145, 149 (7th Cir. 1985). Copying as an element of substantial similarity, however, is limited to the purely factual issue of whether the defendant used the plaintiff’s work as a starting point for his own. Stillman, 720 F. Supp. at 1357. Thus, a defendant who has copied as a factual matter may not have copied as a legal matter. Id. (“If a defendant has not copied something protected by the copyright laws—specifically, the plaintiff’s expression of his ideas—then his copying will not subject him to liability.”) (citing Sid & Marty Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1163–64 (9th Cir. 1977)). In other words, “a plaintiff must establish at least permissible copying as a prerequisite to proving illicit copying.” Stillman, 720 F. Supp. at 1357.
Substantial similarity also has dual usages. When substantial similarity is used to determine copying as factual matter, it “can refer to the likeness between two works sufficient to
b. How to apply the substantial similarity test
Having discussed the substantial similarity standard within the larger copyright context, we now address the variety of approaches regarding its application. In Arnstein, the Second Circuit described the copying and unlawful appropriation requirements as a two-step inquiry, explaining that while dissection and expert testimony are proper under the first prong, copying, they are irrelevant under the second prong, unlawful appropriation, which is determined by the response of the ordinary observer. Arnstein, 154 F.2d at 468. Some courts have formulated this inquiry as the extrinsic-intrinsic test, including the Ninth Circuit, which we add has extensive experience with regard to the entertainment industry. Murray Hill Publ’ns, Inc. v. Twentieth Century-Fox Film Corp., 361 F.3d 312, 318 (6th Cir. 2004); Krofft, 562 F.2d at 1164 (applying the extrinsic test to prove the first prong and the intrinsic test to prove the second prong). The Ninth Circuit has applied the extrinsic-intrinsic test to music copyright cases, Three Boys Music Corp. v. Bolton, 212 F.3d 477, 485 (9th Cir. 2000), as have other circuits, see, e.g., Lil’ Joe Wein Music, Inc. v. Jackson, 245 F.App’x 873, 877 (11th Cir. 2007); Dawson v. Hinshaw Music, Inc., 905 F.2d 731, 733 (4th Cir. 1990). The Seventh Circuit stated in Atari, however, that its
The substantial similarity standard in this circuit has been said to be “somewhat nebulous.” Nash v. CBS, Inc., 704 F. Supp. 823, 826 (N.D. Ill. 1989). Some courts have stated that the confusion is due to the fact that in Atari, the two steps of analysis under the bifurcated test “ultimately merge into a single inquiry: whether a reasonable jury could find the competing designs substantially similar at the level of protected expression.” Oravec v. Sunny Isles Luxury Ventures, L.C., 527 F.3d 1218, 1224 n.5 (11th Cir. 2008); Beal v. Paramount Pictures Corp., 20 F.3d 454, 459 n.4 (11th Cir. 1994). According to courts in this circuit, however, the confusion concerns only the nature of the first prong, which “the Seventh Circuit has not clearly described.”
Nash, 704 F. Supp. at 826; Stillman, 720 F. Supp. at 1358 (“Atari creates obfuscation because it refers to substantial similarity in terms of [copying], but then sets forth the test necessary to establish [improper appropriation].”). In certain cases, it may initially appear that courts have perpetuated the Atari approach where in fact the two-part test has been recognized, but because copying has been conceded, courts have been able to “dodge the bullet” on the first prong. See Nash, 704 F. Supp. at 826 (recognizing the two-part test, but applying only the second prong—the ordinary observer test—because defendant in that case “agreed to assume ‘copying’ (as that term is used in the first prong of the ‘substantial similarity’ test)”).
Regardless of the reason for the Seventh Circuit’s approach in Atari, the court recently remarked that the “confusing” nomenclature is a “pseudo-conflict” because “the outcomes do not
2) whether there is unlawful appropriation. JCW, 482 F.3d at 914 (citing Feist, 499 U.S. at 361, 111 S. Ct. at 1296).
Given this well-established two-part inquiry, it appears that the root of the confusion surrounding the substantial similarity test in this case is not, fundamentally, the test per se, but rather the tests’ emphasis, or lack thereof, on expert testimony. Defendants propose that we follow the Atari model, which relies predominantly on the ordinary observer test. (Def.’s Br. 6–7.) Francescatti, on the other hand, argues that the more appropriate test, given the complex nature of the computer-generated Gaga Song, is the extrinsic-intrinsic test, which places greater weight on analytical dissection and expert testimony. (Pl.’s Resp. 18–19.) She states that this case is distinguishable from other music copyright cases where a court can make a “side by side” comparison by listening to the music to determine total concept and feel because, here “[c]omputer generated EDM [electronic dance music] requires computer analysis.” (Pl.’s Resp. 25.) Accordingly, Francescatti argues that expert testimony, through use of the extrinsic-intrinsic test, is essential in order to understand what protectable elements have been copied. (Id. at 19.)
Although the terminology surrounding the substantial similarity standard has been “surprisingly muddled,” Peters, 692 F.3d at 633–34, the real confusion boils down to whether expert testimony may be relied upon in assessing similarity between two musical works. Thus, when the parties in this case advocate in favor of different tests, the practical implications of
The question we are presented with in this case, then, is whether this musical copyright case warrants expert testimony.2 Whether expert testimony is warranted in any given case depends on the nature of the allegedly infringing work. While simplistic works may be determined by the spontaneous response of the ordinary observer, more complex works may require expert testimony in order to help the trier of fact distinguish copied elements under the first prong of the analysis. Some of the most complicated material consists of computer- generated , the Second Circuit declined to apply the ordinary observer test, stating that it “may well have served its purpose when the material under scrutiny was limited to art forms readily comprehensible and generally familiar to the average lay person.” Computer Assocs. Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 713 (2d Cir. 1992). The court granted discretion to the district courts “to decide to what extent, if any, expert opinion, regarding the highly technical nature of computer programs, is warranted in a given case.” Id. It clearly indicated, however, that the court was not “disturbing the traditional role of
2We aim to shed light on this issue, recognizing that music copyright law’s “fragmented application is proving troublesome for the music industry[.]” Tonya M.
In a case involving computer programs
According to the Seventh Circuit, however, expert testimony could indeed be necessary for certain aesthetic arts. Atari, 672 F.2d at 619 (“Video games, unlike an artist’s painting or even other audiovisual works, appeal to an audience that is fairly undiscriminating insofar as their concern about more subtle differences in artistic expression.”). As discussed below, a varying degree of expert testimony has thus been applied to artistic works. We now address whether the Gaga Song—which although it does not involve source or object code, is computer- generated—is a sophisticated work that requires analytic dissection and expert testimony.
c. Whether to apply expert testimony to determine substantial similarity between the musical works
Musical works have historically been treated as a “traditional” copyright matter, which meant that courts applied the ordinary observer standard, requiring little, if any, analytic dissection and expert testimony. Nimmer § 13.03[E]. The ordinary listener standard is derived from the reasonable person standard, which has been used in other areas of law, such as contracts, to determine whether a person has fallen below a minimum threshold of a particular social norm. See Computer Assocs. Int’l, 982 F.2d at 713. The reasonable person standard presupposes that there is a right and wrong way to carry out affairs. J. Michael Keyes, Musical Musings: The Case for Rethinking Music Copyright Protection, 10 Mich. Telecomm. Tech. L. Rev. 407, 432 (2004), available at http://www.mttlr.org/volten/Keyes.pdf. Music, however, is inherently subjective; there is no accepted social norm that provides a meaningful standard on how music would be perceived by a reasonable listener. Id. Consequently, some courts have
Exacerbating the difficulty with the inherently subjective ordinary observer standard is the dramatic degree to which the music industry has evolved over the course of the last century. See Keyes, supra, at 430; John R. Zoesch III, “Discontented Blues”: Jazz Arrangements and the Case for Improvements in Copyright Law, 55 Cath. U. L. Rev. 867 (2006). When the first music copyright cases were reported, see Jollie v. Jaques, 13 F.Cas 910 (C.C.S.D.N.Y. 1850), the music industry revolved around printed sheet music. It thus made sense for Congress and courts to treat music like other works. Since then, however, technological and social developments have significantly altered the musical landscape. Keyes, supra, at 414. In light of these challenges, some experts now argue that the ordinary observer standard is fundamentally out-of-date and no longer applicable to the modern day music industry. Id. at 419; Alice J. Kim, Expert Testimony and Substantial Similarity: Facing the Music in (Music) Copyright Infringement Cases, 19 Colum.-VLA J.L. & Arts 109, 125 (1995).
Several concerns arise in this case that lead us to conclude that expert testimony is warranted. Given how increasingly complex the music industry has become since the ordinary observer was first established, we share the concern raised in the literature that a court’s “lay ear” may not be able to adequately assess the similarities between musical works. See, e.g., Keyes, supra, at 434–35; Zoesch, supra, at 903; Kim, supra, at 125. In this case, according to
A court in this district previously used expert testimony where the infringing work was of a different nature than the copyrighted work. See FASA Corp. v. Playmates Toys, Inc., 912 F. Supp. 1124, 1169 (N.D. Ill. 1996), vacated in part on other grounds, 108 F.3d 140 (7th Cir. 1997) (“The issue of whether Playmates has illegally copied FASA’s protectible designs is made even more difficult than usual because the allegedly infringing items are in a different medium and are of a different nature than the copyrighted item.”). Moreover, because “[a]n author has the exclusive right to produce derivative works based on the original work,” as the Seventh Circuit acknowledged in Atari, “the judicially created ordinary observer test should not deprive authors of this significant statutory grant merely because the technical requirements of a different medium dictate certain differences in expression . . . in some cases it may be important to
The concerns we have raised with the ordinary observer standard as they relate to music copyright cases can be ameliorated with the use of expert testimony in this case. Due to the difficulty we face in ascertaining the alleged similarities between the songs, expert testimony is warranted in order to determine whether objective copying has occurred under the first prong of the substantial similarity analysis. Specifically, because of the different musical genres we are presented with and the fact that the Gaga Song is computer-generated, our lay ears cannot be relied upon to determine whether there has been copying. Even Defendants, who otherwise advocate in favor of the Atari ordinary observer standard, recognize that expert testimony “may be useful to the court in evaluating substantial similarity.” (Def.’s Reply 7.)
Some experts go so far as to argue that the ordinary observer “total concept and feel” standard should be altogether abandoned since it promotes an “abdication of analysis,” which “subvert[s] the very essence of copyright, namely the protection of original expression.” Nimmer § 13.02[A][c]. Although courts have recognized that expert testimony is at times necessary to determine copying, attempts to entirely do away with the ordinary observer test with regard to musical works have been rejected. Baxter v. MCA, Inc., 812 F.2d 421, 422 n.2 (9th Cir. 1987)
3 “If because of the camouflage of a different medium, the lay audience loses sight of the similarity, the fact remains that the plaintiff may have suffered a substantial appropriation of the fruits of his labor. In
We address Defendants’ argument that “the legal standard does not change with the musical genre”; electronically-created music “still consists of melody, harmony, rhythm and lyrics, even if created electronically.” (Def.’s Reply 1.) We emphasize that we are not applying a different substantial similarity analysis. Rather, we are stating that the songs in this case are sufficiently complex, especially given the use of computer technology, to warrant expert testimony within the well-established, bifurcated substantial similarity analysis.4
4On May 30, 2014, we granted Defendants’ motion to file notice of supplemental authority. (Dkt. No. 185.) In a non-binding motion to dismiss decision, Edwards v. Raymond, a Southern District of New York judge found that the songs were not substantially similar as a matter of law. Edwards, 13 c 7985, 2014 WL 2158932, at *6 (S.D.N.Y. May 23, 2014). Defendants argue that, like the judge in that case, we should also apply the ordinary observer test: “[N]o expert analysis . . . may save the plaintiff’s claim.” (Def.’s Supp. Auth. Mot. at 1.) We agree with Plaintiff, however, that “the ‘overall concept and feel’ standard . . . does not [necessarily] stand for the proposition that expert testimony is not material to the question of substantial similarity.” (Pl.’s Resp. to Def.’s Supp. Auth. Mot. at 1–2.) Although expert testimony was not at issue in the Edwards case, the court acknowledged that the Second Circuit has at times applied a “more discerning” analysis. Edwards, 2014 WL 2158932, at *6 (citing Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 65 (2d Cir. 2010) (acknowledging “that there can be instances of alleged copyright infringement where the question of substantial similarity cannot be addressed without the aid of . . . expert testimony”)); see Computer Assocs. Int’l, 982 F.2d at 713 (“In making its finding on substantial similarity with respect to computer programs, we believe that the trier of fact need not be limited by the strictures of its own lay perspective.”). For the reasons discussed above, we find that the question of substantial similarity between the Francescatti and Gaga songs “cannot be addressed without the aid of . . . expert testimony” in this instance. See id.
d. Application of the extrinsic-intrinsic test
Having discussed the substantial similarity standard and the fact that expert testimony is appropriate in this case, we apply the extrinsic-intrinsic test as set forth in Stillman. Stillman, 720 F. Supp. at 1357–59 (citing Krofft, 562 F.2d 1163–64). In Stillman, the court explained that the extrinsic prong “permits a plaintiff to prove copying by showing, through analytic dissection and (if necessary) expert testimony, that the similarities between the two works—when viewed in
562 F.2d at 1164; Arnstein, 154 F.2d at 468). This inquiry, however, “fails to account for the possibility that the similarity of expression may fall within the category of what is known as nonprotectible expression.” Stillman, 720 F. Supp. at
1359. Therefore, the next step is to determine whether “the similar response arises solely from the similarities of the nonprotectible elements of the two works.” Id.
In this case, to establish substantial similarity under the extrinsic-intrinsic test, Francescatti must first show that Defendants copied elements of her song, and then that the copying extends to protected expression. Although we find that Francescatti has established copying under the extrinsic test, she has failed to meet the requirements of the intrinsic test. No reasonable trier of fact could find under the ordinary observer standard that the allegedly infringing elements of the Gaga Song capture the total concept and feel of the Francescatti Song. Even if the songs did share a similar total concept and feel, however, such similarities would arise from unprotectable elements.
I) Extrinsic test: copying in the factual sense
“The extrinsic test considers whether two works share similarity of ideas and expression as measured by external, objective criteria.” Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir.
(citing Atari, 672 F.2d at 614; Krofft,
Although courts have declined to outline “a uniform set of factors,” Swirsky, 376 F.3d at 849, the threshold for establishing copying is low, Krofft, 562 F.2d at 1166. Because the only issue under the extrinsic test is idea similarity, and because in most copyright litigation, the plaintiff only files an action where there is at least a colorable claim as to substantial similarity of ideas, it is rare that a court has the power to rule for the defendant in advance of trial on the extrinsic prong. Nimmer § 13.03[E][b][I]. “Under Krofft, any idea that is found in both plaintiff’s and defendant’s works is sufficient to satisfy the extrinsic test.” Id.; Krofft, 562 F.2d at 1166. There need not be a comparison of the idea in each work. Nimmer § 13.03[E][b][I].
With regard to musical composition, “a single musical note would be too small a unit to attract copyright protection (one would not want to give the first author a monopoly over the note of B–flat for example).” Swirsky, 376 F.3d at 849. Courts have also found that a three-note segment is insufficient to sustain a claim for infringement. Newton v. Diamond, 388 F.3d 1189 (9th Cir. 2004) (finding no substantial similarity where only a three-note
*12 (holding that a three-note phrase was “unprotectable as a matter of law”). However, “[a]n arrangement of a limited number of
notes can [indeed] garner copyright protection.” Swirsky, 376 F.3d at 851–52 (citing Elsmere -27-
played over a
lower octave, was at issue);
Allen, 2009 WL 2178676, at
Here, the two songs contain more similarities than just a three-note segment. First, the Francescatti Song shares a similar title to the Gaga Song. Second, both songs also include the repetitive use of the word “Juda” or “Judas” as a refrain, which is done in a monotone manner throughout the song. (RSOF ¶ 68.)
Third, Francescatti argues that the breakdown sections share several similarities. (Pl.’s Resp. 24–25.) The first element that her experts identify is the locations of the breakdowns. We find that the locations, however, are undisputedly dissimilar. The breakdown occurs in the Francescatti Song between 2:05—2:25, but in the Gaga Song between 2:42—3:10. (Shehab Rep. 13.) Another element is that both breakdown sections begin with four 16th notes. (Cockrell Dep. 86:6–10.) With regard to the “texture” of the breakdown sections (SOF ¶ 83), the experts did not identify similarities in terms of the melody or harmony. (McGeehan Dep. 165:9–166:3.) The added instrumentation halfway through the breakdowns is also different; the Francescatti Song adds electric violin and bass guitar whereas the Gaga Song adds only spoken vocals. (Id. 166:9–19.)
According to McGeehan, both breakdown sections “end with a subdivided rhythm (subdivision of the beat) which transitions to a new section that includes strings playing 16th
Thus, the only similarity between the songs’ breakdowns is that both begin with four 16th notes.
With respect to the melodies, we start by addressing the fact that McGeehan applied five alterations to demonstrate similarity. (Id. ¶ 49; Def.’s Br. 14.) We may not compare the melodies in their altered states. “Substantial similarity may not be shown by an analysis that alters the actual sequence or construction of plaintiff’s work in order to achieve a juxtaposition that makes for greater similarity with defendant’s work.” Warner Bros., Inc. v. American Broad. Cos., 654 F.2d 204 (2d Cir. 1981) (internal quotes omitted); see Trousseau Monogram Corp. v. Saturday Knight Ltd., 16 U.S.P.Q.2d 1079, 1080 (S.D.N.Y. 1990). The correct approach may not “divorce pitch sequence and rhythm from harmonic chord progression, tempo, and key[.]” Swirsky, 376 F.3d at 847–48 (“It is these elements that determine what notes and pitches are heard in a song and at what point in the song they are found. To pull these elements out of a song individually, without also looking at them in combination, is to perform an incomplete and distorted musicological analysis.”). In Johnson, the First Circuit affirmed the district court’s grant of summary judgment where it rejected the conclusions of plaintiff’s expert where he had to apply a “series of  alterations to the plaintiff’s melody,” including altering the rhythm and adding a note, in order to make it sound like defendant’s song. Johnson v. Gordon, 409 F.3d 12,
We find that the melodies are not similar. Most of the notes are different and there are many differences between their intervals. Additionally, the string part in the chorus of the Francescatti Song and the vocal part in the chorus of the Gaga Song are not similar. Lastly, the monotone pitch in both songs is different. According to Cockrell, the melody of the first verse of the Francescatti Song is not sung entirely on the same pitch whereas the first verse of the Gaga Song is sung entirely on the same pitch. (Id. ¶ 79.) Moreover, the rhythmic durations of the pitches in the first verse of both songs and the pitches themselves are different. (Id. ¶¶ 80–81.) The differences so outweigh the purported similarities between the melodies that they cannot be said to be even remotely similar. See Johnson, 409 F.3d at 22.
Although Francescatti does not allege many similarities between the two songs, she alleges more similarities than a three or four-note segment. A copied portion, which is “relatively small in proportion to the entire work” can give rise to substantial similarity “if qualitatively important.” Baxter, 812 F.2d at 425. Here, Dr. Dale Cockrell testified that “although the sounds are different in some aspects, there are a number of noteworthy similarities that collectively support my conclusion that a high degree of substantial similarity exists between these works.” (RSOF ¶ 41.) In light of the low threshold for the extrinsic test, we find that the aforementioned similarities between the songs give rise to a question of fact as to whether Defendants copied Francescatti’s work. A reasonable trier of fact could find that Francescatti has
ii) Intrinsic test: copying in the legal sense a) Overview
Two well-established tenants of copyright law must be upheld under the intrinsic ordinary observer test. First, the Copyright Act does not protect ideas, but only the particular expression of an idea. Hobbs v. John, 722 F.3d 1089, 1094 (7th Cir. 2013) (citing Atari, 672 F.2d at 615); Feist, 499 U.S. at 349–50, 111 S. Ct. at 1290. Second, even at this level of particular expression, the Copyright Act does not protect elements “that are so rudimentary, commonplace, standard, or unavoidable that they do not serve to distinguish one work within a class of works from another.” Hobbs, 722 F.3d at 1095 (citing Bucklew v. Hawkins, Ash, Baptie & Co., 329 F.3d 923, 929 (7th Cir. 2003)). Thus, even if a similar idea exists between the works, there has been no infringement unless substantial similarity is also found in the original expression of that idea. Stillman, 720 F.2d. at 1358 (“[T]o show unlawful appropriation, (i.e., substantial similarity as a matter of law), the plaintiff must demonstrate that the defendant’s copying extended to the plaintiff’s protectible expression.”). We therefore address under the intrinsic prong of the substantial similarity analysis whether a reasonable trier of fact could find that evidence of factual copying extends to similarity of 1) expression 2) that is protected.
Summary judgment is appropriate under the intrinsic test where the similarity between the works concerns only noncopyrightable elements or where no reasonable trier of fact could find that the works are substantially similar. Allen, 2009 WL 2178676, at *8 (citing Herzog v. Castle
Krofft, 562 F.2d at 1166. The infringement of expression occurs when “the ordinary observer, unless he set out to detect the disparities [in the works], would be disposed to overlook them, and regard [the works’] aesthetic appeal as the same.” Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960). As such, the intrinsic test precludes reference to objective criteria and expert testimony, and instead requires an inquiry into whether an ordinary observer experiencing the two works would conclude that “the accused work has captured the ‘total concept and feel’ of the copyrighted work.” Atari, 672 F.2d at 614 (quoting Roth Greeting Cards v. United Card Co., 429 F.2d 1106, 1110 (9th Cir. 1970)); see also Roulo v. Russ Berrie & Co., Inc., 886 F.2d 931, 939 (7th Cir. 1989); Krofft, 562 F.2d at 1164; Arnstein, 154 F.2d at 468.
Because we do not rely on expert testimony to determine similarity of expression under the intrinsic test, we give no weight to the opinion of Francescatti’s expert, Shehab, who states that the songs would not sound similar to “an average listener or music consumer not trained in music. Francescatti is also a musician, we do not give weight to her opinion that people not trained in music would not hear the similarities of the
” Shehab Dep. 53:3–54:20.
songs. (Francescatti Dep. 27:18–24, 101:1–5, 104:24–105:5.)
5 Defendants have failed to present
To determine whether the alleged infringing work has captured the total concept and feel of the copyrighted work under the ordinary observer test, courts make “side-by-side . . . comparisons of works to determine similarity.” Craig, 1999 WL 412581, at *4 (citing Wildlife Express, 18 F.3d at 506–07); Atari, 672 F.2d at 619. Where the works are musical, a court compares them by listening to the music and reviewing the transcriptions of the music to
Lil’ Joe Wein Music, 245 F.App’x at 880 (granting summary judgment for defendant in part because “the ‘average lay observer’ would not confuse the two works”); Johnson, 409 F.3d at 22 n.6 (“[I]t is undisputed that the two musical segments, as written, do not sound alike and would not sound alike to an ordinary observer.”).
Courts have applied a variety of approaches when comparing the works. Nash, 704 F. Supp. at 826 (“Because ‘unlawful appropriation’ can be such an elusive concept, courts have suggested numerous approaches by which to compare a copyrighted work and allegedly infringing material.”). Defendants argue that we must determine the total concept and feel of the songs based on an ordinary observer’s spontaneous response. (Def.’s Reply 6.) This assessment must be made, however, after filtering out the unprotectable elements, such as musical ideas and unoriginal musical expression. (Id.; Def.’s Br. 7.) While Francescatti acknowledges that
determine whether a reasonable juror could hear the similarities between the songs. See,
Under the filtration approach, the court first filters out the unprotectable elements before determining the total concept and feel of the works. Cooling Sys. & Flexibles, Inc. v. Stuart Radiator, Inc., 777 F.2d 485, 493 (9th Cir. 1985) (citation omitted) (“[W]hat is important is not whether there is substantial similarity in the total concept and feel of the works, but whether the very small amount of protectible expression in [plaintiff]’s catalog is substantially similar to the equivalent portions of [defendant]’s catalog.”). Cooling Systems involved a radiator parts catalog, but the filtration method was later applied to another “functional work:” computer programs. Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435 (9th Cir. 1994) (applying the filtering test and rejecting plaintiff’s requests that comparison take place between the computer programs as a whole, rather than with an analytically dissected distillation). A later Ninth Circuit ruling, however, retreated from its holding in Cooling Systems with respect to artistic works. McCulloch v. Albert E. Price, Inc., 823 F.2d 316, 321 (9th Cir. 1987) (holding Cooling Systems inapplicable to artistic works, and that even uncopyrightable material could be considered in evaluating substantial similarity); Cory Van Rijn, Inc., v. California Raisin Advisory Board, 697 F. Supp. 1136, 1140 (E.D. Cal. 1987) (“[N]ot persuaded” by defendant’s filtering argument, the court instead applied Krofft.).
(same); Allen, 2009 WL 2178676, at *11–12 (applying the filtering method to lyrics and a three- note phrase).
At other times, courts in the Seventh Circuit, as well as the Ninth Circuit, have said that the unprotectable elements must merely be identified, but not necessarily filtered out. Dream Games of Ariz., Inc. v. PC Onsite, 561 F.3d 983, 988–89 (9th Cir. 2009) (approving jury instructions that appropriately identified the unprotectable elements of plaintiff’s work, while allowing the jury to inspect the work as a whole); FASA, 869 F. Supp. at 1353 (“[B]efore the [robot-like battle machine toys] can be considered as a whole under the intrinsic test, the unprotectable elements have to be identified, or filtered.”)(emphasis added).
lyrics); Peters, 776 F. Supp. 2d at
This debate, according to the Seventh Circuit, is much ado about nothing so long as the court makes a finding as to protectable expression. Copyright infringement requires proof of the fact that “the two works share enough unique features to give rise to a breach of the duty not to copy another’s work.” Peters, 692 F.3d at 633–34. Fundamentally, the intrinsic test must address the fact that copyright protection only extends to 1) expression 2) that is original. Feist, 499 U.S. at 361; 111 S. Ct. at 1296. Filtering need not necessarily happen as the first step under the intrinsic analysis, however, in order to uphold these two tenants of copyright law. In Hobbs, the Seventh Circuit separated out the analysis by first discussing the elements in terms of their expression and then discussing the elements in terms of their originality. Hobbs, 722 F.3d at 1095 (“Hobbs’s first four allegedly similar elements are expressed differently in [the two songs].
6In Nash v. CBS, Inc., 704 F. Supp. 823 (N.D. Ill 1989), the court declined to apply the “total concept and feel” standard, explaining that doing so would require the court to “consider similarities between the works in their entirety, including their unprotected portions.” In that case, however, the issue was not whether to filter out the unprotectable elements before or after a determination as to similar expression, but whether to ever filter out the unprotectable elements.
Consistent with Seventh Circuit authority, we decline to filter out the unprotectable elements before assessing the similarity of the songs’ expression. In this case, we will be assisted in determining the factual issue of copying if both works are first compared in their entirety without filtering out the unprotected elements. “[A]n initial holistic comparison may reveal a pattern of copying that is not obvious when only certain components are examined.” Gates Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823, 841 (10th Cir. 1993) (comparing computer software).
We acknowledge that unprotectable elements of a program, even if copied verbatim, cannot serve as the basis for ultimate liability for copyright infringement. However, . . . [t]he fact that non-protectable elements of the original program were also copied, although it cannot be the basis for liability, can be probative of whether protected elements were copied. That is because, in certain situations, it may be more likely that protected elements were copied if there is evidence of copying among the unprotected elements of the program.
Id. at 832 n.7.
Moreover, it is important to compare works in their entirety in cases where copying has not been conceded. Id. Where copying has been conceded, which often happens in software infringement actions, “the matter at issue . . . is actionable similarity, rather than copying as a factual matter.” Nimmer § 13.03[F]. Where a factual issue is presented, however, “filtration may not be the optimal method of determining probative similarity.” Id. Here, where copying
b) Application of the ordinary observer test
i. There is no similarity of expression
When assessing the songs’ expression, we keep in mind that substantial similarity may arise between the works as a whole and between their individual elements if such elements are qualitatively important or give rise to a unique combination. See Atari, 672 F.2d at 619; Durang, 711 F. Supp. at 143 (stating that the district court properly compared the plays “as a whole” in addition to considering the alleged similarities individually); Feist, 499 U.S. at 362; 111 S. Ct. at 1296. We therefore first evaluate the two songs in their entirety, considering both protectable and unprotectable elements, in order to determine whether an ordinary observer would find that the Gaga Song has captured the total concept and feel of the Francescatti Song. Simply listening to the songs, as the law requires, reveals their utter lack of similarity. Before we reviewed the experts’ submissions, we were unable to make the distinctions that Francescatti is asking us to make. We agree with Defendants that the songs do not have common lyrics, the themes are different, and they do not sound at all alike musically. (Def.’s Br. 1.) Even Francescatti agrees that her song is “more lyrical, slower in tempo, and is a recorded live performance by its composer” whereas the Gaga Song is “an EDM sound recording created with synthesized sounds and other pieces of digital audio files.” (Pl.’s Resp. 19–20.) Thus, we find the similarity of
Even though we find that the songs, taken as a whole, do not infringe upon Francescatti’s copyright, the question remains as to whether individual elements of expression have been copied. Cavalier v. Random House, Inc., 297 F.3d 815, 825 (9th Cir. 2002). A copied portion, which is “relatively small in proportion to the entire work,” can still give rise to substantial similarity “if qualitatively important.” Baxter, 812 F.2d at 425. To be qualitatively important,
at 636 (not finding substantial similarity where the songs’ hooks, their shared title, and their references to Kate Moss were considered “only small cosmetic similarities”). Accordingly, we next assess,
from the perspective of an ordinary observer, whether the elements that we identified under the extrinsic test—the songs’ titles, the repetition of the titles in the lyrics, and the four 16th notes that propel the breakdown sections—are substantially similar in terms of their expression.
No reasonable fact finder could detect similarities between the expression of the repeated words, “Juda” and “Judas,” in the lyrics. Their monotone melody does not sound similar. And although we find that the songs share similarities in terms of their titles and the four 16th notes,
7This case is unlike Baxter in which the Ninth Circuit overruled the district court’s finding that similarity was “totally lacking” because it determined that reasonable minds could differ as to the substantial similarity between the songs. Baxter, 812 F.2d at 423. In Baxter, the Ninth Circuit found that the songs shared more similarities than just a six note segment, and a potentially qualitatively important segment at that. Id. at 425. The songs at issue in this case do not have as much in common as the songs in Baxter nor do they share a qualitatively important element that gives rise to a similar total concept and feel between the songs.
these similarities must be more than “cosmetic similarities.” See
Peters, 692 F.3d
Even when viewing the alleged similarities in combination, we conclude that Francescatti has not plausibly alleged that the Gaga Song infringes on her song. See Peters, 692 F.3d at 636. A “unique combination” of elements otherwise undeserving of protection can form an original expression entitled to copyright protection. Feist, 499 U.S. at 362, 111 S. Ct. at 1296; Hobbs, 722 F.3d at 1093 n.4; JCW, 482 F.3d at 917; Bucklew v. Hawkins, Ash, Baptie & Co., 329 F.3d 923, 929 (7th Cir. 2003). To prove substantial similarity in terms of a unique combination of elements, Francescatti must demonstrate that her song combines elements in a unique and substantially similar way as the Gaga Song. In other words, the “whole [must be] greater than the sum of its parts.” Stillman, 720 F. Supp. at 1361 (finding substantial similarity where “the synergy of  nonprotectible elements in the Eastern commercial creates a whole that is greater than the sum of its parts”); Williams v. Crichton, 84 F.3d 581, 590 (2d Cir. 1996) (lists of random similarities held not probative of substantial similarity because such lists fail “to address the underlying issue: whether a lay observer would consider the works as a whole substantially similar to one another”); Le Moine, 1996 WL 332688, at *6 (finding no substantial similarity where “the similar appearance of the two works stems only from the individual elements they share, not from a substantially similar total concept and feel arising from the creative arrangement and interaction of common elements”). To hold that the combination of merely cosmetic similarities need not be unique would essentially do away with the ordinary observer “total concept and feel” test since plaintiffs could survive dispositive motions by merely alleging more than one similarity, no matter how disconnected the similarities are. Here, there is not a
Needless to say, Francescatti cannot rely upon a combination of dissimilar expressions to establish substantial similarity. Hobbs, 722 F.3d at 1095–96 (finding that the plaintiff “cannot rely upon a combination of dissimilar expressions to establish that [defendant’s song] infringes upon [plaintiff’s song’s] ‘unique selection, arrangement, and combination of’ of those expressions”)(emphasis included). Accordingly, we agree with Defendants that Francescatti has not only failed to establish similarity between the individual elements, but she has also failed to establish that the songs share a similar, unique combination of elements. (Def.’s Reply 17.) The individual elements do not combine in such a way as to give rise to a similar total concept and feel between the songs.
Francescatti has not established similarity between the songs as a whole; between individual, qualitatively important elements; nor a unique combination of elements. The similar titles and the four 16th notes are not sufficient to give rise to a finding that the Gaga Song has captured the total concept and feel of the Francescatti Song. See Peters, 692 F.3d at 633–34. Thus, no reasonable trier of fact could find that the songs’ expressions are substantially similar.
ii. The elements are not protectable
Even if the expressions were similar, they are not protectable. First, the title of the Francescatti Song is not protectable. Peters, 776 F. Supp. 2d at 749–50 (“[T]itles by themselves are not subject to copyright protection.”); see also Hobbs, 722 F.3d at 1096. The word “Juda” is found in 243 song titles, and the word “Judas” is found in 2,139 song titles (Shehab Rep. 17); see
Second, repetition of the songs’ respective titles in the lyrics is unprotectable. See Hobbs, 722 F.3d at 1096 (“Repetition is ubiquitous in popular music.”); Selle, 741 F.2d at 905 (observing that “popular music” is a field “in which all songs are relatively short and tend to build on or repeat a basic theme”). Many musicians have repeated a title lyric, and in particular “Juda” and “Judas,” in songs that predate the two songs at issue here. (SOF ¶¶ 59, 61–63.) In fact, Gaga herself on prior occasions has repeated her titles in her lyrics. (Ferrara Rep. at 18 n.13 (listing “Alejandro,” “Bad Romance,” and “Poker Face” as examples).) Where an allegedly copied element of a work appears in the defendant’s prior works, the presumption is that the defendant copied that element from herself, not the plaintiff. Murray Hill, 361 F.3d at 326. Repetition of the titles in the songs’ lyrics is therefore an unoriginal, unprotectable element.
Lastly, the four 16th notes are unprotectable because Francescatti cannot claim copyright protection over a single note. Swirsky, 376 F.3d at 849. The repetition of the note four times does not make it protectable because it is not a unique combination. See infra; see also Peters, 692 F.3d at 636 (quoting Steele v. Turner Broad. Sys. Inc., 646 F. Supp. 2d 185, 192 (D. Mass.
We find that Francescatti has neither established that the elements are protectable nor has she established a unique combination of these unprotectable elements.
For the reasons discussed above, we conclude as a matter of law that the two songs are not substantially similar. No reasonable trier of fact could find that Defendants copied protected expression in Francescatti’s song. The songs do not “share enough unique features to give rise to a breach of the duty not to copy another’s work.” Hobbs, 722 F.3d at 1096 (citing Peters, 692 F.3d at 633–34). Accordingly, we grant Defendants’ motion for summary judgment.
Chicago, Illinois June 17, 2014
United States District Judge