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By Anandashankar Mazumdar  

May 27 — R&B recording artist Usher's 2005 single “Caught Up” was not substantially similar to a musical composition also titled “Caught Up” that had been written by plaintiffs bringing a copyright infringement claim against Usher and his record company, the U.S. District Court for the Southern District of New York ruled May 23.

Granting a motion to dismiss, the court found no substantial similarity in the lyrics, the music, or the “feel” of the two works. Furthermore, many of the individual elements asserted as similar by the plaintiffs were found to be unprotectable ideas.

Two ‘Caught Up' Songs

Zacharia L. Edwards, Mitch Moses, and Vince McClean of New York were songwriters who in 2002 composed the work “Caught Up.” They took the work to Arista Records Inc. along with other compositions they wanted to market, and provided a copy of it to director Michael Barackman.

Usher Raymond IV, known professionally only as “Usher,” began his career as a recording artist in 1991 and has since issued seven studio albums with several pop and R&B hits, the biggest being “Yeah!,” released in 2004 on the album “Confessions.” Also included on “Confessions” was a track called “Caught Up,” which became a hit, charting at No. 8 on the Billboard Hot 100 chart.

In 2012, Edwards, Moses and McClean filed an application with the Copyright Office to register their copyright interest in “Caught Up.” In 2013, they sued Usher, Sony Music Entertainment Inc., and several other entities, alleging that Usher's “Caught Up” recording infringed their rights in their “Caught Up” composition.

Usher moved for dismissal under Fed. R. Civ. P. 12(b)(6) for failure to state a claim for which relief is available under the law, arguing that the two works were not substantially similar.

Only Original Elements Can Be Protected

The court first stated that the title “Caught Up” was not eligible for protection under copyright law.

“It is well established that common phrases are not eligible for copyright protection,” the court said. “Only those components of a work that are original to the author are eligible for copyright protection.” The court said:

The phrase “caught up” is not original to the Plaintiffs' it is used in everyday speech in a variety of contexts.

However, the court noted, unprotectable elements can be combined together to form an original, protectable expression. Thus, the court turned to Edwards's argument that Usher's “misappropriation of a number of expressive elements of the Plaintiffs' Song … together suffice to render the Challenged Song ‘substantially similar.' ”

Four of 10 elements asserted as similar were ideas expressed in the works, which could not be protected by copyright law, the court said. Among the remaining six elements, two were legal conclusions that there was infringement, including an assertion that “several individuals have informed Plaintiffs that, in their lay opinions, Defendants have copied Plaintiffs' musical composition.” Such legal conclusions were “not entitled to significant weight.”

The court was thus left with four alleged similarities:

(1) “[t]he theme, melody, hook, lyrics, and chorus of the musical compositions are substantially similar;” that (2) the two songs “begin similarly, with each respective singer building the song and then leading into the first verse, which introduces the plot of the composition, a man caught up in lost love; that (3) “[t]he choruses of the two … musical compositions are similarly arranged. Both musical compositions have one line, followed by the phrase, ‘Caught Up,' which is then followed by one line and the phrase, ‘Caught Up';” and that (4) the songs “end with similar lyrics expressing … confusion ….” In Plaintiffs' musical composition … the composition ends with the lyric, “She's messing with my mind.” Comparably, Usher's version … ends with the lyric, “I'm losin' control, this girl's got a hold on me.”

According to the court, these allegations did not amount to substantial similarity, given that the first was yet another legal conclusion, the second was a “necessary” component of “nearly any song,” combined with an unprotectable idea, the third was another attempt to protect a common phrase, and the fourth simply showed no similarity.  

Dispensing with the individual characteristics, the court analyzed the two songs taken as a whole, which “confirms a lack of substantial similarity.”

Turning to the music, the court also found confirmation that the works were not substantially similar, not only in comparing several elements but also the “feel” of the works. The lyrics also were not substantially similar, the court said.

Thus, the court dismissed the infringement claim for lack of substantial similarity. The court declined to exercise supplemental jurisdiction over a breach of contract claim.

The court's opinion was issued by Judge Denise L. Cote. Edwards was represented by the Voelker Litigation Group, Chicago. Usher and Sony were represented by Jonathan D. Davis P.C., New York.

To contact the reporter on this story: Anandashankar Mazumdar in Washington at amazumdar@bna.com

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

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