Write a Hit, Get a Writ

December 29, 2010

Last month,  popular singers Usher and Alicia Keyes were sued in the Southern District of New York for copyright infringement.  The plaintiff, Wadena Pyatt, claims that the defendants’ song “Caught Up” is strikingly similar to her own less-famous song also called “Caught Up.”  Pyatt seeks actual damages and disgorgement of profits; you can view the complaint at 2010 WL 4703559.

It is not uncommon for lesser-known artists and singers to sue their more famous counterparts for claims of copyright infringement.  Back in 2002, for example, Brigham Young student Clinton Poulsen claimed the pop group ‘N Sync’s song “See Right Through You” stole portions of his own, similarly-titled song.  Usher himself was involved a similar suit in 2008 in which the composer-songwriter Ernest Straughter (albeit a much more famous plaintiff than Pyatt or Poulsen) claimed that Usher’s song “Burn” infringed some of his original work.  You can view the amended complaint at 2009 WL 1406539 .

We weren’t able to find much on the origins of the old addage,  “write a hit, get a writ.”  In the Intellectual Property Texts and Periodicals (IP-TP) and UK Journals (UK-JLR), we retrieved four doucuments with:

hit /4 writ

We nevertheless found relevant documents searching for cases addressing “strikingly similar” (vs. “substantially similar).  For example:

“Requirements for finding copyright infringement due to “striking similarity” between infringed and infringing works are particularly high when popular music is involved, due to limited number of notes and chords available to composers, resulting in common themes appearing in pieces.” Tisi v. Patrick, 97 F.Supp.2d 539

Our query for this result was wp(“strinkingly similar” “striking similarity”)

The case is cited several times for this idea.  In Patry on Copyright:

“The opining of experts that the similarities are “striking” is (in the absence of access) almost always a disingenuous effort to elevate common place similarities into heightened ones in order to avoid summary judgment.” Striking Similarity – Definitions, PATRYCOPY § 9:44  

And, this memo from Beyonce:

Like probative similarity, “striking similarity” is an analytical tool for determining whether factual copying may be inferred from circumstantial evidence. Whereas the probative similarity inquiry requires independent proof of access before an inference of factual copying may arise, the striking similarity inquiry does not; the striking nature of such similarities is itself enough to give rise to an inference of access. Ty, Inc. v. GMA Accessories, Inc., 132 F.3d 1167, 1170 (7th Cir. 1997). The striking similarity test should be “applied with particular stringency in cases …involving popular music.” Tisi, 97 F. Supp.2d at 5482008 WL 5358761

Finally, we also reviewed, Well I Wonder, Wonder…Who Wrote The *#!@( 3) ( 3)( 3)( 3)( 3)( 3)( 3)*! Song: A Call for hte Aboloishment of Frivolous Lawsuits in the Music Copyright Infingement Arena Through the Right Mix of Existing Law, DePaul-LCA Journal of Art and Entertainment Law, Fall 1997:

“However, it is not always the unknown songwriter who suffers in copyright infringement lawsuits. The well-known artist can also fall prey to actions which unjustifiably accuse him of the theft of the songs which are in actuality his own original creations.”