“Sorry” is beginning to take a new meaning for Justin Bieber, who once associated this word with musical success. Now the word is associated with fear due to potential legal consequences for alleged copyright infringement. Indie singer/songwriter Casey Dienel (stage-name White Hinterland) filed a lawsuit against Bieber in federal court in Nashville, Tennessee. In her complaint, she alleged that Bieber and Skrillex, the producer of the song, stole a vocal riff from her song “Ring the Bell” and used it throughout the song “Sorry.” Further, Dienel claimed she reached out to Bieber and Skrillex’s respective attorneys to inform them about the infringement and those efforts were ignored, leading to this pending lawsuit.
“Sorry” spent 15 weeks on the Billboard charts, peaking at number 1 and as of February 2016 sold over 2 million copies in the United States. The song’s success helped catapult Bieber and allowed him to shed some of his “teen idol” image and morph into a respected artist. Due to the song’s success, some fans began to criticize Dienel, claiming her copyright infringement claim was purely motivated by the lucrative payday she would receive if her claim were successful. However, protecting the integrity of an artist’s work is crucial to promote more creativity and influential art, which warrants taking her claim seriously. While listening to the beginning of both songs, the riff’s use seems to be more purposeful than coincidental.
This is not Bieber’s first time facing a copyright infringement lawsuit. In 2010, Bieber and Usher released the single “Somebody to Love.” Shortly thereafter an R&B singer, Devin Copeland (stage-name De Rico), and a songwriter, Mareio Oberton, filed suit in federal court alleging Bieber’s song was copied from their song with the same name. Though a district judge dismissed the case, the Court of Appeals in 2015 remanded the case to the lower court. They believed a jury should decide the issue dealing with an “almost identical rhythm” and a “strikingly similar melody.” Since this case is still pending a final judgment, Bieber’s copyright suits will likely keep the remainder of 2016 busy.
A copyright is provided to the original creator of a tangible medium of expression; anything from literary works, musical works, motion pictures, choreography, sound recordings, etc. A copyright comes into existence the moment the idea becomes tangible in an original and creative format. 17 U.S.C. 102. Its goal is to promote artistic expression in individuals. Subject to certain restrictions, the owner of a copyright has the exclusive right to reproduce copyrighted work, prepare derivative works based upon the work, distribute copies to the public by sale or transfer of ownership, to perform the work publicly, to display the work publicly, and to perform the work publicly by means of a digital audio transmission. 17 U.S.C. 106. If a creator is concerned that their work may be similar to another work, the safest way to proceed and avoid a potential copyright infringement claim is to obtain a license from the original producer prior to releasing new material. The issue is, most creators feel that their work is the original, so they do not even consider getting licenses.
In the past, copyright infringement was a much simpler determination. But, with the advent of technology, new techniques were used when producing musical compilations that complicate the matter. Recording artists now “sample” parts of other songs to amp up their own creation. In a landmark series of cases, known as the Bridgeport Music litigation, the Court of Appeals for the Sixth Circuit addressed the issue of whether sampling was copyright infringement or fair use due to the minimal nature of the reproduction. In one of these cases, the court stated,
Even when a small part of a sound recording is sampled, the part taken is something of value. No further proof of that is necessary than the fact that the producer of the record or the artist on the record intentionally sampled because it would (1) save costs, or (2) add something to the new recording, or (3) both. For the sound recording copyright holder, it is not the “song” but the sounds that are fixed in the medium of his choice. When those sounds are sampled they are taken directly from that fixed medium. It is a physical taking rather than an intellectual one. Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 802 (6th Cir. 2005).
If a work is subject to fair use, then a person is entitled to utilize a portion of another’s work for limited purposes. When determining if fair use applies to the given circumstances, courts determine four factors, including (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the whole, and (4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. 107. If the Court determines reproduction is not fair use, then the copyright is presumed to be infringed upon, subject to legal remedies.
As Bieber’s story is just beginning to unfold, it seems as if it will be a long, uphill battle to win this case. Bieber’s best argument would be to claim fair use, especially since the sampled material is only one riff. However, his argument that it is fair use is likely to fail the four-factor test found in 17 U.S.C. 107.
The purpose and character of the use was to produce a commercially successful song. Bieber used the riff as the opening sound for the song as a whole, indicating his need to use the riff as an attention grabber.
The nature of the copyrighted work was, also, for a commercially successful song. Since Dienel is a recording artist herself, she created the riff and sound to reach out to her fans.
The amount and substantiality of the portion used is honestly minimal in relation to the whole copyrighted work. Personally, after listening to both songs, the riff, a couple seconds worth of sound, is the ONLY thing that the two songs appear have in common.
The effect of the use upon the potential market for or value of the copyrighted work could be harmful to Dienel’s career. The riff is now identifiable as Bieber’s creation in his hit song. With this association present in the minds of individuals, Dienel’s credibility could be impacted without just compensation or credit.
Two important interests are at stake in this pending litigation: promoting new creativity and protecting artist integrity. To balance these interests, the Court in Bridgeport Music made it clear, “Get a license or do not sample.” 410 F.3d at 801. If Bieber originally obtained a license from Dienel, the pending litigation and the reputational impact could have been avoided in totality. Bieber, we know you try, but you don’t do too well with apologies and it’s too late now to just say “Sorry.”
Disclaimer: This post is not intended as legal advice.
Written By: Sydney Altman, Rising 2L Emory University School of Law