R&B hit artist Usher is currently the subject of a copyright infringement suit. Last year, songwriter Ernest Lee Straughter filed suit in the Central District of California alleging that Usher’s number one hit song “Burn,” released in July 2004, infringed on Straughter’s song “Reasons,” a song released under the name “No More Pain” in 1998 by R&B group Reel Tight.
Under current copyright law, a plaintiff prevails in an infringement suit only if he can show that: (1) the author of an allegedly infringing work “copied in fact,” which can be shown through evidence of a defendant’s access to the original work and/or through probative similarity of the two works; and (2) that defendant appropriated a sufficient amount of the protectable elements in the plaintiff’s work as to render the two works substantially similar.
In August, a California federal judge denied Usher’s summary judgment motion, offering several reasons in its opinion. First, Judge Snyder reasoned that Usher (and his co-writer Jermaine Dupri) could have had access to Straughter’s work, because both Usher and Straughter had worked with hip hop producer Warren G. In addition, Judge Snyder found that the album “Reasons” appeared on reached number 32 on Billboard’s R&B/Hip Hop chart, which supported a theory of subconscious copying based on widespread dissemination of “Reasons.” Lastly, Judge Snyder relied heavily on Straughter’s expert musicologist, who opined that “Burn” and “Reasons” shared “substantially similar introductions, overall structure and spatial organization, repeated melodic sequences, harmonic progressions, and uses and placements of melisma.”
On September 19, Usher filed a motion to reconsider the court’s denial of summary judgment. According to a report on Billboard.com, Usher attacked Judge Snyder’s reasoning that he had access to Straughter’s work, arguing that Judge Snyder failed to point to evidence that Warren G had any hand in the creation of “Burn.” Furthermore, Usher claimed that Judge Snyder completely conflated the terms “album” and “song,” underscoring the fact that “Reasons” was never released as a single but was rather a “random and unproven song” that only received nationwide radio airplay three times.
If a federal judge denies Usher’s latest motion, the case will be put to a jury. Under Ninth Circuit precedent, the jury’s duty will be to determine subjectively whether the two works, compared side-by-side, are “substantially similar” enough to conclude that “Burn” is an infringing work. What do you think?