Although this case deals with music, it's instrumental in educating creators on what "substantial similarity" means in a copyright infringement lawsuit, as well as the details about how these tests are applied. At issue was Josh Groban's "You Raise Me Up," which the music publisher Johannsongs claimed shared similar melody and lyrical themes to the Icelandic song "Söknuður." Johannsongs filed a lawsuit in federal court in California, and Josh Groban's legal team requested a summary judgment.
At this point, we need to learn about some basics. When a copyright infringement lawsuit is initiated, the test used to determine infringement is whether the two works at issue are "substantially similar." The only issue is that each circuit has its own test in measuring substantial similarity. In fact, the Ninth Circuit has two of its own tests: an "extrinsic" test and an "intrinsic" test. Since the case was at the summary judgment stage, the district court judge (within the Ninth Circuit) said that they could only rule on the "extrinsic" test, which “compares the objective similarities of specific expressive elements in the two works and often requires expert analysis." The reason is that the intrinsic tests relies on a reasonable person to observe similarity of expression, and they would need a jury to do that. At the summary judgment phase, a jury is not available.
Substantial similarity requires a comparison of the "expressive" elements of the works. To that point, the experts are tasked with filtering out "unprotected" elements, such as elements that are derived from public domain works. And that's what Groban's expert did. He claimed that the 8-note sequence at issue between the two works was actually based on the Irish folk tunes "Londonderry Air" and "Danny Boy," which are in the public domain. And the district court and the Ninth Circuit agreed.
Johannsongs appealed to the US Supreme Court, arguing that SCOTUS should weigh in on these circuit splits surrounding the "substantial similarity" test. In particular, it asked SCOTUS to adopt the Second Circuit's approach, which asks whether a lay observer would see that the two works in question are substantially similar. The Second Circuit's test also looks to the "total concept and feel of the work." It still asks to assess whether the protectable elements are substantially similar).
Nevertheless, SCOTUS denied cert and the circuit split will stand. Although there was no definitive answer from SCOTUS, I wanted to blog about this so you can see the innerworkings of copyright infringement lawsuits and how judges discern if there is indeed infringement.