Critics of increasingly restrictive effects of copyright law in musical production can seek solace in the recent Southern District of New York copyright decision of Guity v. Santos, et al., No. 18-cv-10387 (SDNY Dec. 05, 2019) (“Order”).

The district court ultimately granted defendants’ motion to dismiss copyright infringement claims brought by musician Nazim Guity against Anthony (Romeo) Santos, Sony, Alcover, and We Loud. Guity claimed that defendants “recorded, released, and profited” from his copyrighted work. Order at 1. The accused song shares the name “Eres Mia” with the protected work, a 2011 song by Guity. Guity collaborated with Alcover and We Loud in creating “Eres Mia” and procured copyright protection in 2014. Santos worked with Alcover and We Loud as well in creating Santos’s “Eres Mia” and later with Sony for the song’s marketing and distribution.

Guity specifically alleged that defendants were guilty of 1) copyright infringement by failing to obtain a mechanical license and/or failure to pay a compulsory license fee; 2) copyright infringement by claiming to compose, author, record, and distribute a copyrightable song; and 3) civil conspiracy to commit copyright infringement; and further alleged 4) plaintiffs were entitled to the equitable remedies of accounting and constructive trust. Id. at 2.

The complaint further read that the Santos song contained protected elements of the Guity song and was “so substantially similar to the [Guity song] as to constitute actionable copyright infringement under Title 17 of the United States Code.” Id.

Substantial similarity, as explained by the court, is part of the legal standard for a copyright infringement claim. In assessing this aspect, the court utilized both the “ordinary observer” test and the “more discerning observer” test. The first test asks whether an ordinary observer would be disposed to overlook disparities and would consider the “aesthetic appeal” of each song to be the same. Id. at 6 (citing Peter F. Gaito Architecture, LLC v. Simone Development Corp. 602 F.3d 57, 66 (2d Cir. 2010).  The second is used when the work contains protectible and unprotectible elements and requires the court to determine whether the alleged infringer has misused the unique way in which the author has “selected, coordinated and arranged the work’s elements.” Order at 6.

Judge Castel determined that under either test, “no reasonable jury could find the two works to be substantially similar.” Id. at 11. “The total concept and overall feel” of each song – an application of the “more discerning observer” test – was respectively so distinct as to preclude such a finding. Id. at 10. Any similarity was de minimis. The sporadic use of short generic phrases and words such as “love,” “mine,” “baby,” and “eres mia,” in either song would not amount to substantial similarity. Furthermore, the court found that under the “ordinary observer” test, the average listener would not find that the Santos song took from the Guity song that which is “pleasing to the ears.” Id. (citing Pyatt v. Raymond, 462 F. App’x 22, 24 (2d Cir. 2012)). Judge Castel then briefly transformed into a Rolling Stone editor in distinguishing the Guity song as a “a straightforwardly brooding hard rock song” and the Santos song as a “light, but complex bachata.” Order at 11.

The court also dismissed the case on the grounds that the alleged protected elements of the Guity song were not, in fact, protected. The order assessed Guity’s claims that his song’s “unique lyrical themes” were protected. Id. at 8. The court avoided the slippery slope that many are weary of within copyright law. Judge Castel clarified that the themes of Guity’s song that were at play, specifically love and desire, “[we]re the exact type of broad themes that lie beyond copyright’s protection.”  Id.

The case provides some much-needed clarification regarding the limits of copyright protection.