Copyright infringement lawsuits involving allegations of song theft rarely get their day in federal court. However, it seems that songwriter Ernest Lee Straughter, who is accusing music superstar Usher of committing copyright infringement with his 2004 #1 hit single “Burn” may find success in a California courtroom.
Straughter contends that he penned a song he entitled “The Reasons Why,” which ended up being recorded by the R&B group “Reel Tight” under the name “No More Pain” back in 1998. Last month, California U.S. District Court Judge Christina Snyder determined that there was a sufficient possibility that music moguls Usher, Jermaine Dupri and other co-defendants who wrote and produced the hit “Burn” had access to Straughter’s work. In reaching her decision to deny Defendant’s motion to dismiss the case on summary judgment, the judge permitted a musicologist’s findings concluding that there was a substantial similarity between the two songs. Accordingly, a California jury may have the rare opportunity to listen to the two works side by side and make a factual determination regarding whether Usher copied Staughter’s song.
Yet, before that will take place, Usher’s camp has filed a motion imploring the judge to re-explore whether Usher would have had access or was otherwise familiar with Straughter’s work.
For a copyright infringement lawsuit like the one filed by Straughter to succeed, the Plaintiff must usually prove both that the Defendant had access to his work and that there was a substantial similarity between the two works. Departing from the issue of whether the two songs are substantially similar, the issue in focus is whether Usher had access to Straughter’s song. Straughter has appeared to throw out multiple theories. While Judge Snyder may not have bought all of these, she did comment that both parties had previously worked with famed hip hop producer Warren G, who may have provided the connection. Additionally, she surmised that because Reel Tight’s album reached #197 on the Billboard Top 200 album chart, it may have been available to Usher through “wide dissemination.”
As Usher surely argued, Warren G had no role in writing, recording or producing the hit single “Burn.” Nor was any factual evidence presented that Staughter’s song was a single that would have gotten radio airplay. In fact, quite the contrary existed. Evidence before the court showed that Staughter’s song got played on the radio around the nation just three times, twice in Tennessee and once in Colorado.
In the age of YouTube, when any individual can upload lyrical, video or other musical content and listen to the content of others, should “access” still be the applicable legal standard that a Plaintiff must prove? If so, how should a twenty-first century judge make such a determination when the internet provides access to everyone of almost everything? Like most industries, the music industry is largely interconnected. Producers, songwriters and touring musicians contribute to recordings in diverse genres and generate their work through recommendations, relationships and collaborations with other artists.
Yet, Judge Snyder’s hinting that Defendant may have had access simply through a shared friend (that of R&B producer Warren G) absent any other evidence, seems no different from saying the parties shared a Facebook friend, a LinkedIn connection, or had similar Twitter followers. Should access be found every time a defendant musician like Usher, (who has over 24 million Facebook “friends”) shares a “friend” with the Plaintiff? As the digital age has made the access standard easier and easier to allege, defendants like Usher are seemingly getting “burned!”
