On March 14, 2019, the United States Court of Appeals for the Ninth Circuit, in Alisa Apps v. Universal Music Group, Inc., et al., affirmed the decision of the lower court granting summary judgment in favor of Defendants Universal Music Group, Inc. (“UMG”) and songwriters John Newman and Steve Booker, in connection with Plaintiff Alisa Apps’s claim for copyright infringement.

According to Apps’s complaint, UMG and Newman had blatantly ripped off her song, “Need to Know,” by knowingly using Apps’ lyrics “I need to know now” in Newman’s song, “Love Me Again.” In making its decision, the Court agreed with the lower court that “Apps provided no direct evidence of copying, so she was required to show both that the claimed infringing work and her work are ‘substantially similar’ and that the alleged infringers had ‘access’ to her work.”

Both the lower court and the Ninth Circuit concluded that Apps “failed to show substantial similarity,” noting that the “only lyrical commonality between both songs is the phrase ‘I need to know now.’” The Court held that “‘[w]ords and short phrases’ are not copyrightable, … nor are ‘[o]rdinary phrases.’” See 37 C.F.R. § 202(a); Narell v. Freeman, 872 F.2d 907, 911 (9th Cir. 1989). The Court also noted the generic nature of the lyrics in question, stating that “these lyrics are not original to Apps,” as UMG “showed that at least 11 songs pre-dating Apps’s song included this common phrase.”

The Court also addressed Apps’s argument that the sound of defendant’s recording is similar to the sound of her copyrighted work, despite the fact that she did not, and could not, argue that there was any actual copying of her recording itself, which the Court ruled was “insufficient under the terms of the statute.” In its analysis, the Court stated that “[t]he exclusive copyright in a sound recording does not extend to a recording of other sounds, ‘even though such sounds imitate or simulate those in the copyrighted sound recording.’” See 17 U.S.C. § 114(b). The Court concluded that Apps “failed to produce sufficient evidence of objective similarities between the compositions of the songs to allow such a claim to proceed to trial.”

CONCLUSION – Any would-be plaintiffs and attorneys considering bringing a copyright claim based on little more than the common use of a short phrase or generic words, and/or a basic similarity in sound, should take note of the short work the Ninth Circuit made of Apps’s copyright claim, and think twice before doing so. Not only did the Court make it clear that “ordinary phrases” are not copyrightable, but as to the similar sound argument, the Court held that “even mimicking copyrighted recording is not infringement absent actual copying.” See VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 882-84 (9th Cir. 2016).

-By Pierre B. Pine