The superstars of the surprising and problematic Virginia lawsuit, of course, would be Justin Bieber and Usher Raymond. But for court scorekeepers, a copyright case brought by aspiring songsters Devon Copeland and his cousin Mareio Overton over the tune Somebody to Love has turned now into a judicial headcount: Let’s tally it as three appellate judges versus a federal district court judge and a federal magistrate.

This latest development has occurred as U.S. Magistrate Douglas E. Miller, acting as fact-finder, has recommended to U.S. District Judge Arenda Wright Allen that she again dismiss the suit by the cousins seeking $10 million in damages from the Beebs and Usher. Copeland Overton claim the pop heavies infringed on their little heard song with their chart topper. Wright Allen earlier had tried to toss the case but was, curiously, overruled by the U.S. Court of Appeals for the Fourth Circuit, where three appellate jurists somehow heard sufficient similarities in the two songs to reverse and remand.

Miller since has reviewed the evidence, and, on some critical issues, wrote in findings issued on Nov. 14 that Copeland simply presented no evidence that any of the defendants in the case ever had access to his song. He has recommended the federal district court dismiss the case on summary judgment, as requested by the superstar duo. Further, though the appellate judges ruled that a reasonable jury might find that the choruses of the versions at dispute were “intrinsically similar,” Miller said, basically, no way.

Dissonance from a musicologist

The magistrate cited evidence from New York University musicology professor Lawrence Ferrara. The Ph.D. testified extensively about similarities in the two songs but called much of their content “generic” and “commonly used.” Though the appellate judges had cited the two compositions’ hooks, especially as their key choruses involved the title-referencing lyric, Ferrara said his research in records from the music licensing agencies ASCAP and BMI included 130 songs with the same “somebody to love” lyrics and title. These tunes have been recorded by upward of 100 different artists, including Jefferson Airplane and Queen.

He also showed that the songs were not “strikingly similar.” He drilled down on the “hook” section of both, which the appellate judges said they heard similarities in. Ferrara, who even wrote the music out–staffs, cleffs, sharps, flats, and eighth-, quarter- and whole-notes  and all — found they were rhythmically alike but differed sharply in pitches; he deemed the rhythmic similarities “trite” and “generic,” attributing some of this to the music following the “somebody to love” lyric, which is all too common.

Miller’s recommendations, in painful detail, show how musical hopefuls like Copeland and Overton try to exploit every connection, especially with family and friends, to access and get the attention of those in the recording industry. This especially occurred in this case through the “shopping process,” in which demos and compositions, by contract, get sent or “shopped around” by industry players to influentials, in the hopes of a star discovery. The magistrate’s findings are filled with a Russian novel’s cast of characters.

But he ultimately agreed with Bieber and Usher, saying that before creating their own Somebody to Love in early 2010, they had no demonstrable access to the 2008 song of the same name created by Copeland and Overton. Though the cousins have provided what the court called “evolving” theories as to how Bieber and Usher just might, maybe, possibly might have accessed their work, the two music celebrities said their song was created from a version provided to them by songwriter Heather Bright. Her tune was provably fashioned, in October or November, 2009, when she was approached by Keith Naftaly, who worked at Sony Music Entertainment. Court records show that Naftaly asked Bright to compose a song that he wanted to propose to Usher for an album he was working on. Bright accepted, and sought the help of a music production trio “The Stereotypes.”

To hear Copeland and Overton tell it, their song, as part of a “shopping” process, eventually made its way to music executive Kirk Lightburn, who worked with Usher’s Sony A & R representative, Mark Pitts.But the magistrate found the cousins’ tortured tracking relied excessively on “speculative reasoning,” and “triple inference.” Miller said it ultimately collapsed because their theories do not fit a timeline so that Bright, Naftaly, Usher, and Bieber had prior, timely access to copy or infringe on the Copeland-Overton song, which the court noted had not been widely distributed, sold, or publicly performed.