I.
PROCEDURAL BACKGROUND
In November 2017, Morrill filed his First Amended Complaint-the operative pleading here. [Doc. # 77]. In that pleading, Morrill alleged four claims for: (1) direct copyright infringement; (2) contributory copyright infringement; (3) vicarious copyright infringement against Williams and Interscope Records only; and (4) a conversion claim under California state law against Steffani only. Id. Morrill also sought declaratory relief and attorneys' fees, id. , although he soon stipulated to dismissing his request for declaratory relief. [Docs. ## 78-79].
On November 22, 2017, Defendants collectively moved to dismiss this action in its entirety through two separate motions. [Docs. ## 81-82]. Soon after, the Court dismissed with prejudice Morrill's conversion claim against Steffani and his request for attorneys' fees. Order Motion to Dismiss ("MTD Order") at 5, 13 [Doc. # 95]. The Court also dismissed Morrill's claim for copyright infringement of the Protected Songs' lyrics with prejudice and his infringement claim as to the Protected Songs' sound recоrdings without prejudice. Id. at 13. The Court denied, however, Defendants' motion to dismiss Morrill's claim of infringement of the Protected Song's musical compositions. Id. at 11-12. Morrill did not amend his infringement claim as to the Protected Songs' sound recordings.
On July 20, 2018, Defendants filed their MSJ, arguing that the rest of Morrill's infringement claim should be dismissed because the Protected Songs' and Spark the Fire 's musical compositions are not substantially similar. [Doc. # 112.] And because Morrill's direct infringement claim fails, Defendants contend that they are also entitled to summary judgment on his remaining claims. Id. The MSJ is now fully briefed. [Doc. ## 113, 114.]
II.
FACTUAL BACKGROUND
The Court sets forth the following undisputed material facts and views them in the light most favorable to Plaintiff Richard Morrill, the non-moving party.
Morrill's copyright infringement claim against Defendants is based on alleged similarities between the Protected Songs' and Spark the Fire 's musical compositions. The parties' comparison between the Protected Songs and Spark the Fire are supported by reports from Judith Finell on behalf of Morrill [Doc. ## 112-8 ("Finell Report"); 112-16]
A. Alleged Similarities between 1996 Lightah and Spark the Fire
Morrill, through Finell, identifies three mаin features between 1996 Lightah and Spark the Fire : Features A, B, and C.
According to Morrill, Feature A involves the "recurring lyrics combined with structural and rhythmic similarities, including the hooks of both songs." Statement of Additional Facts ("SAF") ¶ 221 [Doc. # 113-10].
As for Feature B , Morrill contends that both pieces have "a nearly identical rhythmic pattern[.]" SAF ¶ 224. The similar rhythmic pattern occurs in the recurring vocal phrase in 1996 Lightah , whereas it occurs in the hook phrases in Spark the Fire . Id. That similar rhythm in 1996 Lightah is an eighth note-eighth note-sixteenth note-sixteenth note tied to a sixteenth note -eighth note. Finell Report at 8. The similar rhythm in Spark the Fire is an eighth note-eighth note-sixteenth note-sixteenth note tied to an eighth note -eighth note. Id. Moreover, the two pieces share a
In Feature C , 1996 Lightah and Spark the Fire share a distinctive tritone-an interval spanning six adjacent pitches-that are featured in the instrumental accompaniments in both songs. SUF ¶¶ 92-95. An example of a tritone is a pitch going from C to an F-sharp because the two notes are separated by three whole tones (C to D, D to E, and E to F-sharp). Id. ¶ 94. In 1996 Lightah , this tritone is found in various instrumental melodies. Id. ¶ 95. In Spark the Fire , tritones are used throughout the song, id. ¶ 96, which Morrill argues is particularly distinctive because the instrumental section is sparse. SAF ¶ 240. But the tritones in each song start and end on different notes, and create different rhythms. SUF ¶¶ 97, 99-100.
Not only does he contend that Features A, B, and C are individually distinctive, Morrill argues that Features A and C, and Features B and C are protectable when combined. Opp'n at 18. Finell notes that Features A and C are protectable when combined because these features occur simultaneously in the first two verses and the chorus sections in 1996 Lightah , and the two features always occur simultaneously in the chorus of Spark the Fire . SAF ¶ 223. Likewise, Finell observes that Features B and C occur simultaneously in verses 2 and 3 of 1996 Lightah and in the chorus of Spark the Fire . Id. ¶ 227.
B. Similarities between 2009 Lighter and Spark the Fire
Along with Feature A, Morrill argues that 2009 Lighter and Spark the Fire also share Features D and E.
Feature D is that both songs have a "distinctive triplet rhythm."
Feature E involves the structural similarity between the paired hook structures of the songs. SAF ¶ 231. Finell notes that there are nearly identical phrases of hook 1 in each song. Hook 1 is followed by Hook 2 in Spark the Fire and most of the time in 2009 Lighter , and Hook 2 contains phrases rhyming with Hook 1 in identical rhythms in both songs. Id. ¶ 246. That is, both have similar phrases: (1) Hook 1 is "who got my light-ah" in 2009 Lighter and "who got the light-ah" in Spark the Fire ; and (2) and Hook 2 is "who got my fi-ah" in 2009 Lighter and "let's spark the fire" in the similarly named song. Id. Finell adds that Features A and E are protectable when combined. Opposition ("Opp'n") at 22 [Doc. # 113].
III.
LEGAL STANDARD
Summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; accord Wash. Mut. Inc. v. United States ,
The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett ,
IV.
DISCUSSION
To show copyright infringement, a plaintiff must prove: (1) ownership of a valid cоpyright and (2) that the defendant infringed by copying protected elements of her work.
The substantial similarity test consists of an extrinsic and intrinsic component. Funky Films, Inc. v. Time Warner Entm't Co., L.P. ,
"The extrinsic test considers whether two works share a similarity of ideas and expression as measured by external, objective criteria." Swirsky v. Carey ,
A. Substantial Similarity between 1996 Lightah and Spark the Fire
The Court will look at Features A, B, and C individually to determine whether each factor goes towards showing substantial similarity.
Feature A does not show substantial similarity between 1996 Lightah and Spark the Fire . As discussed above, Feature A has three main components: (1) both songs share a distinctive pronunciation and rhyming that is different from standard English; (2) the lyrics "light-ah" and "fi-ah" are found on beat four in both songs; and (3) both songs share similar rhythms. Finell Report at 5. First, the distinctive pronunciation of the words "light-ah" and "fi-ah" does not demonstrate similarity. As the unrebutted report of Professor Morgan shows, pronouncing words that end in an "er" with an "ah" sound is a common practice in African Amеrican Vernacular English ("AAVE"). Morgan Decl. ¶ 7. This practice pre-dates 1996 Lightah and is a staple in rap and hip hop music, as well as other types of media. Morgan Decl. ¶¶ 8-9. And deleting verbs-thus turning "who's got" into "who got"-is another common AAVE practice. Id. ¶ 11. It is uncontroverted that such pronunciation of words in AAVE is an unprotectable scènes à faire. See Swirsky ,
Second, rhyming the words "light-ah" and "fi-ah" on beat four of both songs cannot be protected because the last word in the line of a song often rhymes. See SUF ¶ 57; Rentmeester ,
Even when the component elements of Feature A are viewed together, there is not substantial similarity. Feature A shows that the alleged similar rhythms and hooks appear at different points in each song. Finell Report at 4. And as discussed above, beat four focuses on different lyrics.
There is also no substantial similarity as to Feature B. Morrill argues that both songs share "a similar rhythmic pattern in both a recurring vocal phrase in [1996 Lightah ] and the hook phrases of [Spark the Fire .]" Opp'n at 15. Morrill claims that there are similar rhythmic values, emphasis of strong and weak beats, and syncopation.
Nor does Feature C-the presence of tritonеs-help show substantial similarity. Tritones are a common feature in modern music. SUF ¶ 106. Thus, the use of tritones is an unprotectable scènes à faire. See Batiste ,
Finally, even assuming that Features A, B, and C are present, there is no substantial similarity between 1996 Lightah and Spark the Fire . True, a combination of unprotectable elements may qualify for copyright protection if they are arranged in an original manner. Satava v. Lowry ,
B. Substantial Similarity between 2009 Lighter and Spark the Fire
According to Morrill, 2009 Lighter and Spark the Fire share Features A, D, and E. Finell Report at 11. The Court considers whether each feature demonstrates substantial similarity.
Feature A does not help show similarity between 2009 Lighter and Spark the Fire for the same reason that it did not help with 1996 Lightah , as discussed above. But even assuming Feature A was protected expression, it could not be used to show substantial similarity between 2009 Lighter and Spark the Fire because the former is a derivative piece. See FAC ¶ 4. Copyright in a derivative work extends only to the material contributed by the author of such work, but it does not cover preexisting material.
Morrill then argues that Feature D-the presence of distinctive triplet rhythm found in the hook of 2009 Lighter and the verse of Spark the Fire -shows the pieces are substantially similar. See Opp'n at 21. But Feature D does not show similarity. Morrill concedes that triplets are common musical features, SUF ¶ 153; thus, the mere presence of triplets is unprotectable. See Smith ,
As for Feature E, this also does not show substantial similarity. According to the Finell Report, 2009 Lighter and Spark the Fire share "important and notable structural similarity in its paring of the similar hook phrases." Finell Report at 16. True, both songs have similar lyrics: (1) 2009 Lighter has the phrase "Who got my light-ah/Who got my fi-ah" and (2) Spark the Fire has the phrase "Who got the light-ah/let's spark the fi-ah."
Based on the undisputed evidence, Morrill cannot show substantial similarity because he cannot satisfy the extrinsic test for either of the Protected Songs. Thus, Morrill cannot show that Spark the Fire violated either of his copyrights. Funky Films ,
V.
CONCLUSION
In light of the foregoing, the Court:
1. GRANTS Defendants' motion for summary judgment on Morrill's claim for direct copyright infringement of 1996 Lightah and 2009 Lighter ; and
2. GRANTS Defendants' motion for summary judgment on Morrill's claims for contributory and vicarious copyright infringement.
IT IS SO ORDERED.
ATTACHMENT
Notes
Defendants filed an evidentiary objection to some of Morrill's evidence. Evidentiary Objections [Doc. # 114-5.] The Court rules on the evidentiary objections insofar as the evidencе is relevant to the MSJ disposition. To the extent the Court does not rely on evidence to which an evidentiary objection was interposed, the objection is OVERRULED as moot.
Defendants object to the introduction of the Finell Report and Finell Deposition as expert evidence. Evidentiary Objection ¶ 10-11 [Doc. # 114-5]. According to Defendants, Finell's Report and Deposition must be excluded under Federal Rule of Evidence 702 because her methodology is unreliable.
Features A, B, and C are composed of thirteen shared elements. Opp'n at 10-11.
A "hook" is the term used in music to describe the melodic signature of the work and is the pаrt of a song that is typically recognized. SAF ¶ 232.
Figure 1 at the end of this Order is a score highlighting Feature A.
Features A, D, and E are composed of twelve shared elements. Opp'n at 19.
A triplet is a rhythm in which three notes are in the time normally allotted for two notes. SUF ¶ 51.
Morrill contends that based on the "inverse ratio" rule, he need only show a lower degree of substantial similarity because he has shown a higher degree of access. Opp'n at 4. Not so-that rule assists only in proving copying. The Ninth Circuit recently explained that, with inverse ratio rule, when there is stronger evidence of access, less compelling similarities between the two works must be shown to give rise to an inference of copying and vice versa. Rentmeester v. Nike, Inc. ,
Defendants' argument that both songs lack pitch does not show dissimilarity. See MSJ at 14. Because both pieces are rap, they will lack pitch; in fact, that is why rhythm is so crucial to Feature B. See SAF ¶ 224.
Indeed, because the tritones in each song begin and end on different pitches, the combination of Features A and C, and Features B and C do not help show substantial similarity. See Opp'n at 18. The fact that the hooks are played with tritones is irrelevant to show substantial similarity because hooks and tritones are basic elements of music. See SAF ¶ 223; see also Batiste ,
Defendants also move for summary judgment on Morrill's claims for contributory and vicarious copyright infringement. MSJ at 24-25. They argue that these claims are "secondary liability" claims that require proof of underlying infringement.