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Aug. 10 — There was enough evidence that British singer Jessie J's 2011 hit song “Price Tag” infringed a 1975 song to justify a trial, the U.S. District Court for the Southern District of New York ruled Aug. 7.
In denying summary judgment to Jessie J, the co-writers and producers of “Price Tag” and their record labels, the court ruled that the song's drum part was “virtually identical” to the drum part in 1970s funk band Black Heat's “Zimba Ku,” and that the defendants had failed to prove that the drum part was common enough that the use of it in “Price Tag” was not probative of copying, or that the part was unprotectable as “unoriginal” or “qualitatively insignificant” to the song as a whole.
The defendants cited three other songs with similar drum parts—including the Jackson 5's “ABC”—to prove that the drum part in “Zimba Ku” was common, but the court found enough substantive differences in the parts to dismiss this argument.
“Price Tag” was released in 2011, and went platinum in the United States where it peaked at 23 on the Billboard Hot 100.
New Old Music Group Inc.'s president, Lenny Lee Goldsmith, wrote “Zimba Ku.”
New Old Music sued the makers of “Price Tag,” including singer Jessica Cornish (professionally known as Jessie J), pop producer Lukasz Gottwald (known as Dr. Luke) and their record labels, alleging copyright infringement.
New Old Music argued that the drum part in “Zimba Ku”— “one of the most famous ‘breakbeats' in funk, R&B, and hip hop music history,” according to Goldsmith—was copied in “Price Tag.”
New Old Music's claim was based solely on the similarity of the drum parts in the two songs. The court said that when transcribed to musical notation, the drum parts appeared to be “virtually identical.”
Jessie J argued in a motion for summary judgment that the “Zimba Ku” drum part—either broken down to its individual elements or as a combination of those elements—was “so common that use of similar elements or a combination of such elements in Price Tag cannot be probative of copying.”
The court said that Jessie J had not proven that the drum part was common enough “to preclude any reasonable inference of copying.”
The court first rejected Jessie J's argument that the individual elements of the drum part were too common to be copied because “Plaintiff, after all, is not alleging copying of these individual elements in isolation—it is alleging the wholesale copying of the relevant Zimba Ku drum part, i.e. these elements in combination.”
Jessie J also argued that three songs predating “Zimba Ku” with similar drum parts—the Jackson 5's “ABC” and “I Will Find A Way” and Thelma Houston's cover of “Me and Bobby McGee”—proved that the drum pattern in “Zimba Ku” was “commonplace.”
The court, however, noted that each of these songs had slightly different drum rhythms which weren't identical to the “Zimba Ku” drums in the same way as “Price Tag.”
Therefore, the court said that it “cannot conclude as a matter of law that no reasonable juror could infer, on the current record, that the creators of Price Tag copied Zimba Ku.”
The court also allowed evidence that Jessie J sampled “Zimba Ku” as probative of copying, even though such evidence was not necessary to prove copying.
The court also said it could not dismiss the case based on Jessie J's argument that the “Zimba Ku” drum part was not a protectable element of the work.
The court said that it could not say the drum pattern didn't have the “minimal degree of creativity” required for copyright protection, or that it was an insignificant part of the work.
“Indeed, listening to the song, the breakbeat can  reasonably be described as the driving groove, or backbone, of the song.” Judge Ronnie Abrams said. “The Court thus cannot conclude as a matter of law that the Zimba Ku drum part is qualitatively insignificant to the work.”
The court therefore denied Jessie J's motion for summary judgment.
New Old Music was represented by Brian Seth Levenson of Schwartz & Ponterio PLLC, New York. The “Price Tag” creators were represented by Christine Lepera of Mitchell Silberberg & Knupp LLP, New York.
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