New Old Music Grp., Inc. v. Gottwald - 122 F. Supp. 3d 78 (S.D.N.Y. 2015)

Rule:

In a copyright infringement action, substantial similarity is generally a question of fact for a jury. Summary judgment is appropriate on the issue, however, where the similarity concerns only noncopyrightable elements of the plaintiff's work or no reasonable trier of fact could find the works substantially similar.

Facts:

Plaintiff instituted the present copyright infringement action against defendants, alleging that the drum part of the popular song “Price Tag,” recorded by the artist known as Jessie J, was copied from "Zimba Ku," a song recorded by the band Black Heat in 1975. The defendants filed a motion for summary judgment, which was based exclusively on expert analysis of the two musical compositions at issue. 

Issue:

Should the court grant the defendants’ motion for summary judgment? 

Answer:

No.

Conclusion:

The defendants’ motion for summary judgment was denied. The court held that the defendants failed to show how the combination of elements that comprised the drum parts was so trite and commonplace as to preclude an inference of copying. The court could not conclude that no reasonable juror could infer that the creators of the allegedly infringing song copied the copyrighted song. Based on a probative similarity analysis, there was a triable issue of fact as to whether defendants actually copied the copyrighted song. Moreover, the court could not conclude as a matter of law that the drum part in the copyrighted song was qualitatively insignificant to the work; a reasonable juror could thus find that defendants took from the copyright holder's works so much of what was pleasing to the ears of lay listeners, who comprised the audience for whom such music was composed, that defendants wrongfully appropriated something that belonged to the copyright holder.