Justin Bieber is headed to the land of the Grand Ole Opry.  Not for concertizing, but for plagiarizing.  Allegedly.  On May 26, 2016, “the Biebs” was sued in the U.S. District Court for the Middle District of Tennessee for copyright infringement by an artist known as White Hinterland.  According to the allegations in the complaint, Bieber and his entertainment entourage wrote and produced the song “Sorry” that appeared on Bieber’s recently-released “Purpose” album.  (The song has been a runaway smash hit, having logged more than 1.5 billion views on YouTube, achieved numerous downloads on iTunes, and produced untold amounts of swooning by the iGeneration).  Hinterland (whose real name is Casey Dienel), takes aim at Sorry because its opening “vocal riff”—consisting of 5 notes—is supposedly “strikingly similar” to the 4 note opening vocal riff in Hinterland’s song “Ring the Bell.”   Here’s the comparison between the relevant portions of both works. Hinterland seeks damages, Bieber’s profits, injunctive relief, and attorneys’ fees too.

The complaint raises a number of questions, some of which we muse about below.

Why Nashville?  Why was the suit brought in the Middle District of Tennessee as opposed to a more “traditional” venue for entertainment disputes like Los Angeles or New York?  We can assure you this was not an ECF snafu by Plaintiff’s counsel. The Middle District of Tennessee is in the 6^th Circuit, which has very favorable law for copyright holders whose sound recordings are “sampled.”   For example, in Bridgeport Music v. Dimension Films, the 6^th Circuit Court of Appeals held that the sampling of a mere three notes from a sound recording was an infringement of the sound recording copyright and that there was no “de minimis copying” defense available.   A few years later, the 6^th Circuit upheld a jury verdict in a copyright case over a song where the word “dog” coupled with “rhythmic panting” were found sufficiently “original,” and illicitly copied by the defendant.  Based on these two cases alone, it seems pretty clear that Plaintiff does not view the Middle District of Tennessee as some copyright hinterland in her suit against the Biebs.

What about Justin’s “#WeDontSteal” Defense?  Soon after the suit was filed, the song’s producer, Skrillex (also a co-defendant),  tweeted a :30 second video to show how the track’s opening riff was created in the studio.  Justin retweeted this exculpatory video using the hashtag “#WeDontSteal.”  If defendants can establish that they independently created the opening hook (as opposed to having sampled or copied it from Hinterland) then that should be sufficient to overcome any inference that it was copied in violation of the Copyright Act, even in the 6^th Circuit.

Should Copyright Infringement Really Turn on a 5 Note Hook Anyway?  Even if a few notes from Hinterland’s work were copied (and I’m not suggesting they were), should this be actionable?  It depends on who you ask.  Certainly the 6^th Circuit has held that any amount of sampling is actionable.  The bigger policy question is whether our copyright laws should be interpreted or applied to find infringement in a case such as this.  We know that short phrases are not protectable by copyright.  Why should short musical phrases be treated any differently from those that are spoken or written?  Moreover, some have previously argued (myself included) that music as an art form—more so than other artistic endeavors—has a huge history of composers and musicians “borrowing” musical ideas and phrases from each other.  This practice has been going on for centuries and far predates the first U.S. copyright laws.  Isn’t it time for copyright to acknowledge this marketplace reality?  I’m sorry to say that for those Beliebers out there, the times may not be a-changin’ any time real soon.