Francescatti v. Germanotta p/k/a Lady Gaga, No. 11 C 5270, Slip Op. (N.D. Ill. June 17, 2014) (Aspen, Sen. J.).
Judge Aspen granted defendants’ Fed. R Civ. P. 56 motion for summary judgment because no reasonable trier of fact could find defendant Lady Gaga’s song “Judas” substantially similar to plaintiff’s song “Juda.”
Local Rule 56.1
As an initial matter, the Court denied defendants’ motion to strike plaintiff’s responses to certain of defendant’s Local Rule 56.1 statements of fact because the Court did not rely upon any of them except one, which did not introduce new facts. That allowed the Court to avoid the parties’ “labyrinth of disputes.”
There was a question of fact as to whether defendants had access to plaintiff’s copyrighted song. While there was a dispute about whether defendant Gaynor, who worked with plaintiff on her song, ever came into contact with Lady Gaga, there was no dispute that Gaynor worked on both songs in dispute.
The Court granted summary judgment of no substantial similarity after recognizing that summary judgment of substantial similarity is generally disfavored. The Court then denied to apply the inverse ratio rule — requiring a higher standard of proof where evidence of access is relatively weak — because the Seventh Circuit explicitly decided not to endorse it. The Court then provided an excellent primer on the substantial similarity law.
a. Expert Testimony
The Court held expert testimony was warranted in this case because:
- The complexity of the music industry had increased significantly since the adoption of the subjective ordinary observer test.
- The Lady Gaga song was created with a Digital Audio Workstation (“DAW”) which can create thousands of sounds.
- The different music genres of the two songs also added to the complexity of the determination.
Although the Court allowed expert testimony and analyzed certain findings of the ordinary observer test, it was explicitly not using a higher standard of review than the ordinary observer test.
b. Extrinsic Test
The Court found the following similarities between the two songs:
- Similar titles;
- Both songs repeat in a monotone the similar words “Juda” or “Judas;” and
- Limited similarities in the breakdowns.
c. Intrinsic Test
The Court did not consider expert testimony or plaintiff’s opinion (because she was a musician) because they were not ordinary observers.
The Court did not follow the filtration method, instead considering the similarity of each song’s expression before removing non-copyrightable elements from consideration, noting that the Seventh Circuit has said either method is acceptable. The Court found an “utter lack of similarity”:
- It took expert analysis for the Court to see plaintiff’s distinctions;
- The songs do not have common lyrics;
- The themes are different; and
- They do not sound alike musically.
The Court, therefore, found the similarity of expression to be “totally lacking.” The Court also held that the individual elements were either not similar or not protectable.