Pankhuri Malik is an IPilogue Writer, IP Innovation Clinic Fellow, and an LLM Candidate at Osgoode Hall Law School.
Justin Bieber and Dan + Shay are next in a line of artists to face allegations of copyright infringement — after Ed Sheeran and Dua Lipa. A group of plaintiffs sued the musicians in the United States District Court in California over their 2019 release “10,000 Hours,” alleging that they “stole the core portion” of the 1973 song “The First Time Baby is a Holiday” (“First Time”).
The three plaintiffs — International Manufacturing Concepts, Melomega Music and Sound Gems — allege that parts of the Grammy-winning song are “practically identical” to First Time. Music distribution company The Orchard, a subsidiary of Sony, released First Time in 2014, and the original written song had been submitted to the US Copyright Office by Melomega in 1980.
As Meena Alnajar noted in her article about the lawsuits against Dua Lipa, to prove copyright infringement, claimants must show that either their song was directly copied (which is often difficult to do), or that the alleged infringer had access to the infringed work and there is substantial similarity between the two songs.
Access to the Infringed Work
The plaintiffs claim that access to their song is indisputable due to its widespread distribution. First Time was initially released in 2014, followed by re-releases in 2017 and 2019 by The Orchard, which has distribution channels in 45 countries. The song was released and distributed through major retailers, such as YouTube, Spotify, iTunes, Shazam and Soundcloud.
Musicologist Dr. Alexander Stewart, after analysing the two songs, concluded that the degree of similarity in the most significant portions of each song is too substantial for 10,000 Hours to have been created independently of First Time. The plaintiffs claim that Dr. Stewart’s analysis of the “core expression” of the songs — chorus, verse and hook — constitutes overwhelming evidence that without First Time, 10,000 Hours would not exist. The analysis of the chorus from the suit documents is reproduced below:
In this suit, plaintiffs seek an injunction on further distribution of 10,000 Hours, credits on the song, its accompanying awards and other public recognition, and payment of costs, damages and statutory damages.
Bieber’s legal team has not responded yet. However, to succeed in this action, the defendants would need to conduct their own analysis of the songs to contest the plaintiffs’ claim of substantial similarity. Given that multiple versions of First Time are available on YouTube, iTunes, Spotify, etc., lack of access would be difficult to prove. Another option would be to settle the dispute out of court. It remains to be seen how Bieber’s legal team will respond.