British songwriters Brian Clover and Scott McCulloch have asked the good old Ninth Circuit – everyone’s favourite circuit, surely – to revive their song-theft lawsuit against that notable – although only alleged – song thief The Weeknd. Californian judge Percy Anderson was wrong to dismiss their copyright infringement litigation last year, Clover and McCulloch argue.
The two songwriters claim that The Weeknd, real name Abel Tesfaye, ripped off a song they wrote, called ‘I Need To Love’, on his track ‘A Lonely Night’ from 2016 album ‘Starboy’’
They, and a third collaborator called Billy Smith, argued that Tesfaye must have had access to their song while creating ‘A Lonely Night’, likely through Universal Music Publishing.
That was partly based on the fact that the three British songwriters had been signed to a deal with the publishing wing of London management firm Big Life, which was then bought by Universal in 2008. Meanwhile, a co-writer on ‘A Lonely Night’, Jason Quenneville, has links to Universal Music Publishing via a Canadian music firm he works with.
But Tesfaye denies having heard ‘I Need To Love’ before writing his song.
In a motion to dismiss in the lower court, his lawyers argued that Quenneville’s co-write credit actually stemmed from a verse he’d written for an earlier unfinished song that Tesfaye then used in ‘A Lonely Night’. And that earlier unfinished song was written before Quenneville had any connections with Universal.
Tesfaye’s team also argued that ‘I Need To Love’ and ‘A Lonely Night’ were not as similar as Clover, McCulloch and Smith claimed, citing recent precedent on similarity in song-theft cases of this kind set in the headline-grabbing ‘Stairway To Heaven’ litigation.
Those arguments proved successful and Anderson dismissed the case.
However, in a new filing with the Ninth Circuit appeals court, legal reps for Clover and McCulloch claim the lower court judge was wrong to grant summary judgement in favour of Tesfaye. They argue that the two songwriters presented sufficient evidence regarding how the defendants might have accessed their song – and regarding the similarities between the two works – for the case to proceed to a jury trial.
“A plaintiff can … prove access using circumstantial evidence of either (1) a ‘chain of events’ between the plaintiff’s work and the defendant’s access to that work (such as through dealings with a publisher or record company), or (2) ‘widespread dissemination’ of the plaintiff’s work”. Clover and McCulloch, the new legal filing states, “presented evidence of both”.
Not only that, but “the melody in the chorus of ‘A Lonely Night’ is, according to [musicologist Alexander] Stewart, ‘literally’ the same as the main melody in ‘I Need To Love’, which one would not expect to arise if the two works had been created independently”.
“This type of striking similarity is sufficient to show that the similarities between the two works are due to copying rather than coincidence, independent creation, or prior common source”, it goes on. “In other words, that the melodies are identical is more than sufficient to create a presumption of copying”.
“Between the striking similarity of the two songs and the evidence of access”, the legal filing concludes, “[Clover and McCulloch introduced enough evidence of defendants’ reasonable opportunity to copy ‘I Need To Love’ to survive summary judgment”.
As for the disagreement over whether or not there is, in act, a sufficiently “striking similarity” between the two songs to constitute copyright infringement, Clover and McCulloch restate the conclusions of the aforementioned Stewart, and argue that it wasn’t for the lower court judge to decide whose musicologists were most compelling.
“Stewart performed the required ‘analytical dissection’ of both songs and concluded that ‘A Lonely Night’ is substantially similar to the protected elements of ‘I Need To Love’”, the new legal papers say. “Stewart also analysed the elements of prior works that defendants assert constitute the non-protectable elements of ‘I Need To Love’ that appear in ‘A Lonely Night’ and concluded that the prior works are not similar to either ‘I Need To Love’ or ‘A Lonely Night’”.
Clover and McCulloch’s lawyers conclude: “The District Court erred by weighing the credibility of the parties’ experts – a task obviously reserved for the jury – and granting summary judgment to defendants on the sole basis that it found their expert’s report more persuasive”.
Given last year saw the US courts – and the Ninth Circuit in particular – seemingly raise the bar when it comes to pursuing song-theft lawsuits of this kind, it will be interesting to see if the appeals judges agree to hear these arguments.