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US Supreme Court declines to answer key question for dealing with song-theft disputes

By | Published on Tuesday 26 April 2022


The US Supreme Court has declined to hear a song-theft dispute in relation to ‘You Raise Me Up’, the song made famous by Josh Groban or Westlife depending on where you live.

Lawyers for the Icelandic writer who claimed that ‘You Raise Me Up’ ripped off his earlier work ‘Söknuður’ wanted the Supreme Court to intervene in the dispute, mainly based on the argument that the US courts have proven inconsistent when considering cases of this kind. But the highest court in the US isn’t seemingly up for hearing that argument.

‘You Raise Me Up’ was written by one time Eurovision winners Secret Garden, with the duo’s Norwegian songwriter Rolf Løvland composing the music. They released a version of the song in 2002, with Groban’s cover coming the following year, and the Westlife version being released in 2005. Numerous other covers have also been released over the last two decades.

In his 2018 lawsuit, Icelandic music-maker Johann Helgason argued that ‘You Raise Me Up’ ripped off his 1977 song ‘Söknuður’, suggesting that Løvland probably heard the earlier work when boarding an Icelandair flight in the mid-1990s, the airline having used Helgason’s song as its boarding music at that time.

Ahead of going legal, Helgason and Icelandic collecting society STEF seemingly analysed the two songs and concluded that they were “97% alike”.

The Icelandic songwriter then hired the services of musicologist Judith Finell, who is perhaps best known for her testimony on behalf of the Marvin Gaye estate in the big ‘Blurred Lines’ trial, where a jury concluded that Robin Thicke and Pharrell Williams had infringed Gaye’s ‘Got To Give It Up’ when writing their hit. Her report backed up Helgason’s claims regarding the similarities between ‘Söknuður’ and ‘You Raise Me Up’.

However, the judge in the Californian court where Helgason filed his lawsuit wasn’t especially impressed with Finell’s work. He wrote that “the Finell reports fail to describe reliable principles and methodology, fail to apply such principles and methodology to the facts, and fail to properly apply the extrinsic test, rendering the reports unreliable, unhelpful, and inadmissible”.

The so called ‘extrinsic test’ comes up a lot in song-theft cases – especially in the Californian courts where a lot of these lawsuits are filed – it being the process of ascertaining what elements two songs share and whether those elements are protected by copyright in isolation.

Lawyers for Løvland argued that both ‘Söknuður’ and ‘You Raise Me Up’ were clearly influenced by the Irish folk song ‘Londonderry Air’, best known for being incorporated into ‘Danny Boy’.

So, that argument went on, the similarities between ‘Söknuður’ and ‘You Raise Me Up’ were where both songs lifted from the earlier public domain folk song. Take those elements out of the equation, they reckoned, and ‘Söknuður’ and ‘You Raise Me Up’ weren’t that similar.

At first instance the judge concurred with the defence on all that, a ruling that was then upheld last year by the Ninth Circuit appeals court. The Helgason side subsequently decided to take the matter to the Supreme Court.

In their petition to the highest American court, the Helgason team focused on the use – in both the Californian court and the Ninth Circuit appeals court it sits under – of that ‘extrinsic test’, which – remember – the lower court judge reckoned hadn’t been property applied by Finell in her expert report.

However, the Helgason team argued, in other parts of the US federal courts sitting under different appeals courts have taken a different approach to copyright cases of this kind. And that includes the Second Circuit appeals court, which – among other things – covers the New York courts, which also see their fair share of music industry litigation.

According to Law360, in the Second Circuit the so called “ordinary observer” test would likely be employed, and had that happened in the Californian courts, Helgason’s team reckoned, summary judgment would have been denied and the case would have gone before a jury.

Law360 explains: “The test that courts in the Second Circuit use to look at copyright disputes dates to a ruling issued in a 1960 textile copyright case called Peter Pan Fabrics Inc v Martin Weiner Corp. That test relies on determining what similarities an ‘ordinary observer’ would discern between two things. In their petition, [the Helgason team] said [they] had proof that when Groban would perform ‘You Raise Me Up’ in concerts in Iceland, the audience sang along with the words to ‘Söknuður'”.

With that in mind, the Helgason petition opened by asking the Supreme Court: “In a copyright infringement case, when deciding whether two musical works are substantially similar, should the courts apply the ordinary observer test as is the rule in the Second Circuit, or should the courts apply the two-part extrinsic/intrinsic test as is the rule in the Ninth Circuit?”

For those seeking at least some clarity about how US copyright law should be applied in these always confusing and unpredictable song-theft cases, that’s a decent question to ask. But, it turns out, not a question the Supreme Court is going to answer anytime soon. The ‘Raise Me Up’ litigation was among a list of cases knocked back by the Supreme Court yesterday.

Which pretty much means this particular song-theft dispute is at an end. Though the various debates it raised along the way are almost certainly not.