Katy Perry Secures Dismissal of Suit Claiming Her Hit Songs Were Infringing

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By Tamlin H. Bason

Nov. 19 --There is no substantial similarity between Katy Perry's hit songs and songs that a plaintiff claimed he distributed to college radio stations between 2008 and 2009, and therefore the plaintiff's copyright infringement fails to state a claim for relief, the U.S. District Court for the Southern District of Ohio ruled Nov. 12 (Lyles v. Capital-EMI Music Inc., 2013 BL 312769, S.D. Ohio, No. 2:12-cv-00751-GLF-EPD, 11/12/13).

The plaintiff, the court said, failed to demonstrate either that the allegedly infringing songs were similar to his own songs, or that the defendants had access to his works. The court accordingly dismissed the complaint.

Ohio Musician Sues Pop Stars
David Lyles is a Ohio-based musician. He filed a copyright infringement lawsuit against Capital-EMI Music Inc., and a number of individual plaintiffs, including pop stars Katy Perry, Raymond Usher and David Guetta.

Lyles alleged that his copyrighted songs “Surf's Edge,” “Netherworld,” and “Someone” were infringed by Perry's hit songs “California Gurls,” “Teenage Dream” and “Last Friday Night.” Lyles also alleged that Guetta's hit song “Without You,” which features vocals by Raymond, infringed Lyles's copyrights in his song “Where.”

Raymond and Perry moved to dismiss.

No Access, No Substantial Similarity
Lyles did not allege direct infringement and so he needed instead to demonstrate first that the defendants had access to his music, and then that the defendants' songs were substantially similar to his songs. Judge Gregory L. Frost determined that Lyles had demonstrated neither.

Lyles's access argument rested solely on the fact that he sent all of his songs to college radio stations between 2008 and 2009.

“The mere fact of Plaintiff sending the songs to the various radio stations, even assuming that those stations received them, does not show either that the stations played the songs or that Defendants Perry and/or Raymond heard them,” the court said. As a result, the court determined that Lyles had not sufficiently demonstrated that either Perry or Raymond had access to his songs.

The proffered evidence with respect to substantial similarity was likewise lacking. Lyles argued that both his “Surf's Edge” song and Perry's “California Gurls” shared a theme that he identified as an “oceanside environment setting.”

The court first noted that a theme is an unprotectable element.

“And even if the 'oceanside environment setting' were a copyrightable element (a dubious proposition, in this Court's view), a comparison of the songs reveals that they are about different aspects of that 'oceanside environment': whereas Surfs Edge appears to be about some relationship that is related to surfing, Perry's California Gurls is about (as the title suggests) girls from California,” the court said.

A comparison of the remaining allegedly infringing songs with Lyles's songs revealed that there were no substantial similarities that would support a copyright infringement claim. The court thus granted the motion to dismiss.

Lyles appeared pro se. Perry was represented by Laurie J. Avery of Reminger Co., L.P.A., Toledo, Ohio. Raymond was represented by Douglas R. Cole of Organ Cole Stock, Columbus, Ohio.


Text is available at http://www.bloomberglaw.com/public/document/Lyles_v_Capital__EMI_Music_Inc_et_al_Docket_No_212cv00751_SD_Ohio.

To contact the reporter on this story: Tamlin Bason in Washington at tbason@bna.com

To contact the editor responsible for this story: Naresh Sritharan at nsritharan@bna.com