Location, location, location. It matters not just in real estate but also for a legal venue, as creative artists Devin Copeland and Mareio Overton were reminded when a federal appellate court overturned a lower court’s dismissal of their case against pop stars Usher, Justin Bieber, (shown in video above) and others, asserting copyright infringement with the pop hit Somebody to Love.

Now fans, composers, lyricists, musicians, and other performers may not find this music to their ears: But the Copeland-Overton-Usher-Bieber case provides a sound illustration of let’s call it jurisdictional discord, with appellate judges in scattered parts of the country ruling off of different, um, scores. Take note, please, that judges have their ears open for some different things when creatives pursue legal claims and this may result for them in judicial harmony or cacophony.

Legal overture

Copeland and Overton had recorded and copyrighted their song in 2008, and then they shopped out the demo. That demo found its way to Usher, who went on to record his own three versions of Somebody to Love, two with Bieber; one of the Usher-Biebs versions made Billboard’s Top 100, coming in at 15. All three launched a suit from Copeland and Overton.

A federal district court originally granted a motion to dismiss by counsel for Usher and Bierber, with the judge finding that no reasonable jury could find the works sufficiently similar. The judge said the songs were in two different genres, their mood and tones differing. Counsel for Copeland Overton appealed and the U.S. Court of Appeals for the Fourth Circuit stated that the factors considered by the lower court were not dispositive. Further, the appellate judges said, given that both songs have a similar “hook,” a jury could find them similar.

Why should Entertainment lawyers and artists listen up to this dual argument?

Appellate tests differ

While copyright cases are hardly a rarity for players in the music industry, the judges of the Fourth Circuit employed a copyright test worthy of artists’ attention to determine if a jury might find infringement: Copeland and Overton had asked the appellate court in Virginia to apply the infringment test employed by their Western peers in the U.S. Court of Appeals for the Ninth Circuit; the judges for the appeals court with jurisdiction over California, and more specifically the music capital of Los Angeles, look at elements of an work individually.  They dissect a work, which may make it easier to find infringement.

But back East, especially in the Fourth Circuit, the judges follow the leadership of their colleagues in New York and the U.S. Court of Appeals for the Second Circuit, employing a two-prong test, where the second prong considers the work as a whole, not by individual elements. Got that?

There are key sites where music reigns and is made in the USA: These centers include LA, NY, Atlanta, and Nashville.  But they all fall in different circuits, so as this case shows, two different tests apply, say, in Manhattan and Hollywood. Entertainment lawyers, for their musical clients, may need to sharpen their awareness of geography as a factor in appellate courts’ findings on infringment.

As for Copeland, Overton, Usher, and Bieber, well, they’ll get a hearing soon before a jury as to the $10-million claim of lost profits and punitive damages. The prevailing test on infringment will be that of the Fourth, not the Ninth, circuits, that is, not symphonies.

Hear, hear

But what do your ears say? Bieber-Usher, as in the video above?

Or Copeland and Overton?

 

Or Usher-Bieber?