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By Chris Cooke | Posted on Tuesday, April 26, 2022
The U.S. Supreme Court has declined to hear a song theft case involving “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 ‘You Raise Me Up’ stole his previous work ‘Söknuður’ wanted the Supreme Court to intervene in the dispute, primarily based on the argument that US courts have found to be inconsistent when examining cases of this type. . But the highest court in the United States is apparently not ready to hear this argument.
“You Raise Me Up” was written by Eurovision winner Secret Garden, with Norwegian duo songwriter Rolf Løvland composing the music. They released a version of the song in 2002, with the Groban cover the following year, and the Westlife version in 2005. Numerous other covers have also been released over the past 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 likely heard the earlier work while boarding an Icelandair flight in the mid-1990s, the airline having used Helgason’s song as boarding music at that time.
Before going legal, Helgason and Icelandic collecting society STEF apparently analyzed the two songs and concluded that they were “97%” alike.
The Icelandic songwriter then enlisted the services of musicologist Judith Finell, who is perhaps best known for her testimony on behalf of Marvin Gaye’s estate in the major ‘Blurred Lines’ trial, where a jury found that Robin Thicke and Pharrell Williams had infringed on Gaye’s rights. Got To Give It Up’ while writing their hit. His report confirmed Helgason’s claims regarding the similarities between “Söknuður” and “You Raise Me Up”.
However, the judge in the California court where Helgason filed his lawsuit was not particularly impressed with Finell’s work. He wrote that “the Finell reports fail to describe reliable principles and methodology, fail to apply those principles and methodologies to facts, and fail to properly apply extrinsic testing, rendering the reports unreliable, unnecessary, and inadmissible.”
The so-called “extrinsic test” often comes up in song theft cases – particularly in California courts where many of these lawsuits are brought – it is the process of determining which elements share two songs and whether these elements are protected by copyright. in isolation.
Løvland’s lawyers argued that “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, this argument continued, the similarities between “Söknuður” and “You Raise Me Up” was where the two songs rose from the earlier public domain folk song. Take those things out of the equation, they reasoned, and “Söknuður” and “You Raise Me Up” weren’t so similar.
At trial, the judge agreed with the defense on all of that, a decision that was later upheld last year by the Ninth Circuit Court of Appeals. The Helgason side then decided to take the case to the Supreme Court.
In its petition to the highest US court, the Helgason team focused on the use – both in the California court and the Ninth Circuit Court of Appeals under which it sits – of this “extrinsic test “, which – remember – the lower court judge found was not used. t been properly applied by Finell in its expert report.
However, according to the Helgason team, in other parts of the United States federal courts sitting under different courts of appeals have taken a different approach to copyright cases of this type. And that includes the Second Circuit Court of Appeals, which — among other things — covers 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 used, and if that had happened in California courts, Helgason’s team felt that summary judgment would have been denied. and the case would have gone to a jury.
Law360 explains, “The test that Second Circuit courts use to review copyright disputes dates back to a decision in a 1960 textile copyright case called Peter Pan Fabrics Inc v. Martin Weiner Corp. This test is based on determining the similarities between an “ordinary observer”. ‘ would distinguish between two things. In their petition, [the Helgason team] mentioned [they] had proof that when Groban performed ‘You Raise Me Up’ in concerts in Iceland, the audience sang with the lyrics of ‘Söknuður’”.
With this 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, courts should- Should they 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 looking for at least some clarity on how US copyright law should be applied in these always confusing and unpredictable song theft cases, it’s a decent question to ask. But, as it turns out, that’s not a question the Supreme Court is going to answer anytime soon. The ‘Raise Me Up’ litigation was among a list of cases dismissed by the Supreme Court yesterday.
Which pretty much means that this particular dispute over song theft is over. Although the various debates he has raised along the way almost certainly aren’t.