Amy Elizabeth Connor Bowen
Brad Paisley, et al.
Comment by Niall Fordyce
On May 5, 2013, plaintiff Elizabeth Connor Bowen, or “Lizza Conner,” as she was known while pursuing a songwriting career in Nashville, brought a copyright infringement action against country songwriter, performer and guitarist Brad Paisley; his songwriting partners, Kelley Lovelace and Chris DuBois; the producer of Paisley’s 2011 album, This is County Music, Frank Rogers; Paisley, DuBois, and Rogers’ publishing company; country songwriter and performer Carrie Underwood; Lovelaces’s music publisher, EMI April; and the distributor of Paisley’s album, This is Country Music, Sony Music Entertainment d/b/a/ Arista Nashville. Defendants filed a motion for summary judgment, which the court granted on August 25, 2016. It remains to be seen whether plaintiff will appeal the court’s ruling.
Between fall 2007 and March 2008, plaintiff penned a musical work with the less than novel title of “Remind Me.” She obtained a copyright registration for her work effective September 3, 2008. Bowen’s work has never been commercially released, and has never been broadcast commercially. In fact, no work she has written has been recorded by another artist.
Not to be outdone on the novelty front, in February, 2011, Paisley, Lovelace and DuBois wrote a musical work also titled “Remind Me.” While Bowen’s work is a sentimental number sung by a single female vocalist, the alleged infringing “Remind Me” is a rather more ribald work, which Bowen herself agreed is about a “passionate physical experience,” sung as a duet between a man (Paisley) and a woman (Underwood).
In her amended complaint, Bowen alleged a single claim of copyright infringement. Bowen’s allegation of infringement boils down to the treatment of the phrases “remind me” and “baby, remind me” as found in the two works. Defendants moved to dismiss the amended complaint, but their motion was denied (note: defendants’ motion to dismiss at the pleading stage is a markedly different motion than defendants’ summary judgment motion that is the subject of this comment). Discovery ensued, and defendants filed their motion for summary judgment, all undertaken, no doubt, at considerable time and expense to all parties.
Defendants’ summary judgment motion argued that (1) Bowen cannot establish originality, an essential element of her copyright claim; (2) Bowen cannot establish copying, another essential element of the claim, because (a) she cannot show that the defendants who composed the Paisley “Remind Me” had access to her Work and (b) she cannot show that the two “Remind Me” works are substantially similar.
As is typical, the court began its analysis by addressing defendants’ access to Bowen’s “Remind Me.” (A valid copyright interest, defendants’ access to the allegedly infringed work, and substantial similarity between the two works are required to show infringement). Although Bowen alleged three potential avenues for defendants’ access to her work, the court chose to focus on only one of the three – Bowen having played her version of “Remind Me” to defendant Lovelace as part of a March, 2008 songwriting workshop. Bowen’s position was that her having played the work for Lovelace was sufficient under the summary judgment standard to create a genuine issue of fact as to the issue of defendants’ access to her version of “Remind Me.” The court agreed.
This may be a legally correct analysis under the 6th Circuit standard outlined in Ellis v. Diffie, 177 F.3d 503, 506 (6th Cir. 1999) (citations omitted) (“Access occurs when the defendant either hears or has ‘a reasonable opportunity to hear the plaintiff[’s] work and thus ha[s] the opportunity to copy.’”) However, it reveals the ever present difficulties in the intersection between music and copyright law. While all parties agree that defendant Lovelace technically had access to Bowen’s work as part of the March, 2008 workshop, Lovelace only ever having heard Bowen’s work likely once or twice at most in the hectic context of a songwriter’s workshop, in amongst other songwriters’ works, and never having had a recording or sheet music for the work, makes it well-nigh impossible that Lovelace, who has never heard Bowen’s work since, would be able to recall and reproduce the musical nuances around the phrases “remind me” and “baby, remind me” some three years later. The court recognized as such, but still concluded that the facts as presented met the summary judgment legal standard of Lovelace having had the opportunity to copy. No doubt Lovelace had a reasonable opportunity to hear Bowen’s work, but it stretches credulity to conclude that his hearing in the context in which it took place provided Lovelace the opportunity to copy Bowen’s work. Fortunately, the court was on-point with its analysis of substantial similarity between the two works.
The court began by laying out the 6th Circuit test for determining substantial similarity – only original aspects of a work are protectable; not protectable elements are “filtered” out, and the court then determines whether the “allegedly infringing work is substantially similar to the protect[a]ble elements of the artist’s work.” Bridgeport Music, Inc. v. UMG Recordings, Inc., 585 F.3d 267, 274 (quoting Kohus, 328 F.3d at 855).
The court addressed defendants’ claim that Bowen’s “Remind Me” was not sufficiently original to merit copyright protection, pointing out both that the legal standard for originality under the Copyright Act is very low, and further, that plaintiff is not claiming infringement over the use of the phrases “remind me” and “baby, remind me.” Such short phrases are seldom likely to warrant copyright protection in and of themselves, and further, there are very limited ways to express the idea encapsulated in the phrase “remind me,” again making copyright protection very unlikely. (One could express the concept encapsulated in “remind me” as “reintroduce me to the feelings and sensations we experienced in the past when the circumstances you are recalling to me were actually taking place,” but only Frank Zappa could make such a lyric flow!) Instead, the court clarified that plaintiff is seeking and would only be entitled to protection for the musical expression of the “remind me” phrases in question.
Bowen opposition to defendants’ summary judgment argues that she is entitled to copyright protection for her decision to set the repetitions of “remind me” to varying melodies, and that Paisley et al infringed by employing the same musical technique. However, the actual melodies in question are dissimilar, as agreed to by Bowen’s own expert! Setting a lyric to different music when the lyric is repeated is an archetypal text setting device, used for centuries throughout different genres of music. More importantly, from a copyright standpoint, this musical process is an idea – it is the melodies and music that result from implementing this musical technique that are the protectable expression, and here, the parties agree that the music in the two works is dissimilar. The court makes clear that varying the melody of a phrase or “hook” is an idea, and it would be the melodic feature itself that would be subject to copyright protection. Well done court!
Bowen further argues substantial similarity between the two works in various other standard musical techniques, including use of vocal “phrase sets” for the “remind me” lyrics, repeating the “remind me” phrases more than is “usual,” use of appoggiaturask and other melodic devices in setting the “remind me” phrases, and the like. The court makes short work of these claims, pointing out that Bowen’s expert concedes that she did not conduct a review of any previous works named “Remind Me” or that incorporate “remind me” in the title in reaching her conclusions regarding phrase usage and repetition. This is a surprising oversight on the part of both Bowen’s counsel and her expert, to say the least.
In discussing the “remind me” “phrase sets,” the court focuses more on the dissimilarities between the purported “phrase sets” in the two works, finding that a lay listener would not actually identify them as “similarities,” thus undermining plaintiff’s claim of substantial similarity between the works. The court once again correctly points out that using “phrase sets” by itself, without a showing of “a closer identity between their usage in the two Works,” is not copyrightable. The court is zeroing in on the key issue – it is the expression of the musical technique, not simply applying the musical technique, that must be analyzed and evaluated.
Finally, the court dismisses Bowen’s claim of “similar features in melodic design” between the “remind me” phrases in the two works, finding that while they may use “a few” similar melodic features – essentially “techniques,” they use them differently. This was not much of a leap for the court, considering that Bowen’s expert had expressly conceded that the two works’ melodies around the “remind me” phrases are dissimilar. Again, Bowen is conflating idea – musical techniques such as an upward leap in the melody followed by a downward step – with the expression of the idea – the notes chosen, their relationship to the underlying harmony, the rhythm of the melody, the metric placement of the melody, the orchestration, etc.. Only the expression may be subject to copyright protection.
The court concludes its ruling by pointing out that literal copying of some of the melodic features in the Bowen work could, in some instances, be qualitatively important enough to support a copyright infringement claim. The only literal copying here, though, is of the unprotectable generic phrases “remind me” and “baby, remind me.” Bowen has not shown that her expression of the musical techniques and melodic features (musical ideas) is similar enough to render the “hooks” in the two “Remind Me” works substantially similar. As such, the undisputed facts show that the works are not substantially similar, and the defendants are entitled to summary judgment as a matter of law.
It is satisfying to see the court get to the correct result, and at least demonstrate some understanding of the musical concepts involved in comparing these two works. More troubling is that this is yet another example of a very weak case that probably should never have been pursued. It is unclear whether these types of actions are being brought through greed or a misunderstanding of both copyright law and musical composition and analysis, but whatever the reason, the consequences are significant. This action has undoubtedly involved significant law and motion, legal research, written discovery, depositions (expert and percipient), document review and preparation, expert and legal analysis, and court and court staff time, all to the tune (pun intended) of likely hundreds of thousands of dollars. As the prevailing parties, one hopes that the defendants have filed their motion for costs and attorney’s fees as permitted under the Copyright Act. What we don’t know is whether granting of fees and costs in this case will “remind” others to think carefully before pursing their questionable music copyright claims.
Opinion by Judge Aleta Trauger: PDF