The U.S. Court of Appeals for the First Circuit has held that a musical composition that was not sufficiently similar to a registered composition to give rise to an inference of actual copying does not infringe that composition. Johnson v. Gordon, Case No. 04-2475 (1st Cir. May 31, 2005) (Selya, J.).
Between 1992 and 1994, the plaintiff, Calvin Johnson, composed "You’re the One (For Me)" for a band called Special Edition. In 1994, Johnson met with an executive at RCA Records (a division of BMG music) and gave him a videotape and audio demo tapes of performances of "You’re the One (For Me)" in hopes of obtaining a recording contract. RCA did not sign Special Edition, but, in March 1996, BMG released a single entitled "You’re the One," recorded by Sisters With Voices (SWV). The single quickly became a hit and was included on SWV’s album "New Beginning," which became a gold album.
After the releases of SWV’s single and album, Johnson obtained a copyright registration for a short version of his musical composition "You’re the One (For Me)" and sued 18 defendants, including SWV, alleging copyright infringement and false designation of origin.
The district court entered summary judgment for the defendants finding Johnson’s copyright infringement claim failed, and the Lanham Act does not safeguard authors from false designation of the origin of their creative expressions. Johnson appealed on the copyright claim only.
The First Circuit affirmed. While it was undisputed Johnson owned a valid copyright in the short version of the song, the Court considered whether Johnson had shown that wrongful copying had occurred. As there was no direct evidence SWV had copied Johnson’s song, Johnson had to show probative similarities between the works from which actual confusion might be inferred and that there was a substantial similarity between the works demonstrating wrongful appropriation.
Applying the Ricordi doctrine, the First Circuit determined copyright protection only extended to the elements of Johnson’s longer version of the song were drawn directly from the registered short version. The court then analyzed point-by-point the allegedly similar sections of SWV’s and Johnson’s songs. After considering the testimony of Johnson’s expert, the First Circuit determined there was no similarity between the melodies of the relevant segments of the songs, and a harmonic progression used by Johnson in his song was not original and not in SWV’s composition, and, therefore, Johnson failed to present evidence to support an inference of actual copying. Moreover, although the two songs use the phrase "You’re the One for Me" in their titles and lyrics, this usage is common and has been used and registered by hundred of composers and therefore is too "trite to warrant copyright protection." Because Johnson failed to identify a degree of similarity between the works sufficient to give rise to an inference that actual copying occurred, Johnson could not, as a matter of law, establish the actual copying element required for his copyright infringement claim.
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