IP Law Daily, COPYRIGHT—N.D. Ill.: Lady Gaga’s song “Judas” was not substantially similar to plaintiff’s song “Juda”, (Jun 18, 2014)

By Thomas Long, J.D.

The song “Judas,” written and performed by pop star Stephani Joanne Germanotta, professionally known as Lady Gaga (“Gaga”), was not substantially similar to a musical work titled “Juda” by songwriter and performing artist Rebecca Francescatti, the federal district court in Chicago has decided (Francescatti v. Germanotta, June 17, 2014, Aspen, M.). Francescatti could not go forward with copyright infringement claims against Gaga, the sound engineer and bassist for the recording of Francescatti’s song, and the record company that released Gaga’s song.

Francescatti wrote “Juda” in 1998. According to Francescatti, the song is about an acquaintance named Juda, whom she met while working at the Chicago Board of Trade, and about her betrayal of her father. The song was initially registered with the Copyright Office in 1999 for guitar and voice. Francescatti registered the song again in 2005 after working with defendant Brian Joseph Gaynor on a new recording that added drums, bass, strings, background vocals, sound mapping, and samples.

In 2010, non-party Brian Lee—a business partner of Gaynor’s—introduced Gaynor to non-party DJ Paul Blair for the purpose of creating original material for Gaga to use on her album Born This Way. Blair provided 14 mp3 files to Gaga via a file sharing service download link. Later, Blair sent some of his own material to Gaga. He denied that he heard or received a copy of Francescatti’s song and denied giving a copy of the song to Gaga. Blair ultimately received credit as a producer or writer for contributions to nine songs on the initial release of the Born This Way album. According to Blair, Gaynor, and Gaga, neither Blair or Gaynor worked on the challenged Gaga song, “Judas.”

“Judas” was recorded during 2010 and early 2011, and the song was published on April 23, 2011. Blair and Gaynor did not work on the song until a remix was created in April 2011. According to Gaga, she first heard the Francescatti song on July 19, 2012. The parties disputed whether Gaynor, in working with Blair on material for the Born This Way album, exposed Gaga, directly or indirectly, to the Francescatti song.

Francescatti filed suit for copyright infringement against Gaga; Gaynor; DJ White Shadow, LLC, a company formed by Gaynor, Blair, and Lee; and Interscope Records, Gaga’s record company, alleging that Gaga’s song “Judas” infringed Francescatti’s copyright in her song “Juda.” The defendants moved for summary judgment.

To establish copyright infringement, Francescatti had to show that actionable copying of the original elements of her song took place. In the absence of proof of direct copying, she could establish copying circumstantially, by showing that the defendants had access to her work and that the accused work was substantially similar to the copyrighted work.

Access

Based on the nature and the timing of the collaboration between Gaynor, Blair, and Gaga, a reasonable juror could find that there was a nexus between the parties and, therefore, that the defendants had an opportunity to view Francescatti’s song, according to the court. The nexus between the parties can be shown through a channel of communication. Although the parties disputed whether Gaynor ever came into direct contact with Gaga, it was undisputed that Gaynor worked on Francescatti’s song before he collaborated with Blair on material for Gaga’s Born This Way album and that Gaynor and Blair received credit for contributions to that album. The existence of this communication channel meant that access was a reasonable, not a bare, possibility, the court said. It was reasonably possible that Blair provided the Francescatti song to Gaga before Gaga’s song was published.

In addition, it was not undisputed that Gaynor never came into contact with Gaga. Whether there was a direct nexus between Gaynor and Gaga depended on the credibility of the witnesses, the court said. The question could not be determined in the summary judgment context.

A trier of fact could find that Francescatti has established a reasonable possibility of access based on the relationships and communications between the parties, the court said. Therefore, she came forward with evidence that would establish a reasonable possibility that the complaining work was available to the defendants. The defendants were therefore not entitled to summary judgment on the issue of access.

Substantial Similarity

The court found, however, that the two songs were not substantially similar, as a matter of law. No reasonable trier of fact could find that the defendants copied protected elements of Francescatti’s song.

The defendants asserted that (1) the two songs did not sound substantially similar and (2) Francescatti’s claims were based on nonprotectable elements.

The court first noted that the substantial similarity inquiry was independent of the access inquiry. Therefore, the court declined the defendants’ request to apply the “inverse ratio rule,” under which weak evidence of access requires a higher standard of proof for similarity. The Seventh Circuit has explicitly declined to endorse this rule.

The court next determined whether expert testimony was warranted with regard to the substantial similarity question in this case. Musical works historically have been treated as “traditional” copyrighted material, which meant that courts applied an “ordinary observer” (or ordinary listener) standard, which required little, if any, analytic dissection and expert testimony.

However, the music industry has grown increasingly complex, the court noted, raising the concern that a court’s “lay ear” might not be able to adequately assess the similarities between musical works. In this case, Francescatti’s expert asserted that Gaga’s song was constructed with a Digital Audio Workstation, which can create “hundreds if not thousands of sounds, especially when you manipulate them.” Moreover, in contrast to the Gaga song, which was created in large part on computers that use software to record and manipulate sounds, the Francescatti song was composed primarily by live musicians playing live instruments in the recording studio. Therefore, the similarities might not be readily apparent, especially to the untrained ear, and a determination as to similarity required analysis beyond just listening to the two songs. These concerns could be ameliorated with the use of expert testimony in this case, the court said.

The court applied the extrinsic-extrinsic test to determine whether the parties’ works were substantially similar. The extrinsic prong permits a plaintiff to prove copying by showing, through analytic dissection and, if needed, expert testimony, that the similarities between the two works—when viewed in terms of both protectable and nonprotectable elements—are so substantial as to warrant a finding that the defendant copied, at least, the plaintiff’s ideas. The intrinsic prong addresses the “indeterminate” boundary between ideas and their expression, involving an inquiry into whether an ordinary observer would find that the accused work captured the “total concept and feel” of the copyrighted work. Then, it must be determined whether the similarity response arises solely from similarities between the nonprotectable elements of the works.

To establish substantial similarity, Francescatti had to show that (1) the defendants copied elements of her song and (2) the copying extended to protected expression. The court found that Francescatti established copying under the extrinsic test, but she failed to meet the requirements of the intrinsic test. Moreover, even if the parties’ songs shared a similar concept and feel, such similarities would arise from unprotectable elements.

Extrinsic test. First, the court noted, the Francescatti song’s title was similar to that of Gaga’s song. Second, both songs included the repetitive use of the word “Juda” or “Judas” as a refrain, in a monotone manner.

Francescatti argued that the breakdown sections of the songs shared several similarities. The court found, however, that the sections varied in terms of their locations, textures, instrumentation, and other aspects. In addition, the songs’ melodies were not similar, in the court’s view. Most of the notes were different, and there were many differences between the intervals.

Although Francescatti did not allege many similarities between the songs, she alleged more similarities than a three or four-note segment. Expert testimony indicated that there were a number of noteworthy similarities between the songs. In light of the low threshold for the extrinsic test, the court found that the similarities between the songs gave rise to a question of fact as to whether the defendants copied Francescatti’s work.

Intrinsic test. The court did not rely on expert testimony to determine similarity of expression under the intrinsic test. The court made a side-by-side comparison of the works, in their entireties, without first filtering out unprotected elements.

Simply listening to the songs, the court said, revealed their “utter lack of similarity.” The songs did not have common lyrics, the themes were different, and they did not sound at all alike musically. Even Francescatti agreed that her song was “more lyrical, slower in tempo, and is a recorded live performance by its composer,” whereas Gaga’s song was an electronic dance music sound recording created with synthesized sounds and other pieces of digital audio files. In the court’s opinion, reasonable minds could not differ as to a lack of substantial similarity between the songs.

In addition, the court found that, as a matter of law, Gaga’s song did not copy individual elements of expression found in Francescatti’s song. Although both songs repeated the word “Juda” or “Judas,” their monotone melodies did not sound similar. The songs shared similarities in terms of their titles and the use of four 16th notes, but those similarities were merely cosmetic, the court said. Thus, no reasonable trier of fact could find that the songs’ expressions were substantially similar.

Nonprotectable elements. Even if the expression were similar, they were not protectable, according to the court. First, the title of Francescatti’s song was not itself protectable, nor was the word “Juda” in the lyrics. Moreover, the evidence suggested independent creation. Francescatti’s song “Juda” reflected Francescatti’s relationship with an acquaintance and the betrayal of her father, whereas Gaga’s song “Judas” was inspired by Gaga’s feelings about a former boyfriend.

Repetition of the songs’ respective titles was not protectable. Nor were the four 16th notes; Francescatti could not claim copyright protection over a single note. Repetition of the note four times was not a protectable unique combination.

Accordingly, the court granted the defendants’ motion for summary judgment.

The case is No. 11 CV 5270.

Attorneys: Christopher William Niro (Niro, Haller & Niro, Ltd.) for Rebecca Francescatti. Alexander Kaplan (Proskauer Rose LLP) for Stefani Joanne Germanotta. Andrew H. Bart (Jenner & Block, LLP) for Interscope Records and Universal Music Group, Inc. Elvis D. Gonzalez (Elvis D. Gonzalez, Ltd.) for DJ White Shadow, LLC.

Companies: Universal Music Group, Inc.; DJ White Shadow, LLC

Cases: Copyright IllinoisNews