Will Usher Have to Pay Up For Stealing Hit Song?
2004 was a fantastic year for R&B superstar Usher Raymond. His album, Confessions, was certified ten times platinum. His love life was the topic of discussion on every entertainment news and blog site. And his hit song “Yeah” was played at every high school senior’s prom…at least three times.
In many ways Confessions was the peak of Usher’s career. Seven years and a couple of not as successful albums later, a little known group filed suit alleging that “Burn,” the second single on Usher’s hit album, was so similar to a song on their not-so-hit album that it had to have been stolen – a claim that could leave the famous singer’s pockets burning.
Ernest L. Straughter claims that a 1998 song he penned for the group “Reel Tight” entitled “No More Pain” shares considerable similarities with “Burn” including the song’s introduction, repeated melodic sequence and harmonic progressions. Mr. Straughter is suing for copyright infringement and in September, a California judge ruled that the case holds enough weight to go forward to trial.
Billboard.com did a great job of outlining the specific claims in the suit, but didn’t take the extra step of analyzing Mr. Straughter’s likelihood of success. Lucky for you, that’s where LASIS comes in.
Let’s start with the basics. In order to succeed in a suit alleging copyright infringement the plaintiff must first prove that the defendant’s work is substantially similar to the plaintiff’s work. Music suits examine elements like the melodies, tempos and harmonies in the original and the later musical composition. Musicians often bring in music experts to support their cases at trial but the similarity is mostly assessed from the point of view of the jury – a lay audience who are, after all, the market for the music.
It is not enough, of course, for the plaintiff to satisfy a jury that the music was similar. The plaintiff must also prove that the musical work was actually copied, which is often significantly harder to prove. In order to prove that a defendant copied a work, the plaintiff must prove that the defendant had access to the work, and that alternative explanations for similarities between the works are implausible.
Mr. Straughter contends that Usher (and his writers/producers) had access to the original work through California rapper Warren G., who has collaborated with both Reel Tight and Usher’s producers. He also argues that Reel Tight’s album reached 197 on the charts, and so it was widely distributed enough for Usher to have come across it.
According to Mr. Straughter, then, the opportunity was there. And his work was copied.
Usher says that his interactions with Warren G. have been minimal throughout his career and, more importantly, that Warren G. did not take part in the making of “Burn.” He also argues that there’s a difference between an album hitting the top 200 and a song hitting the top 200. The likelihood of Usher having heard a single song that hadn’t hit a top 200 on the singles charts from the little-known Reel Tight, he contends, is slim, at best.
This is not the first time a famous singer was charged with copyright accusations. In 2000, famed soul singers The Isley Brothers were plaintiffs in a similar suit against R&B crooner Michael Bolton. In 1994, a jury found that Mr. Bolton’s song “Love Is a Wonderful Thing” infringed on the Isley Brothers’ song by the same name. In his appeal, Mr. Bolton claimed, in effect, that he could not have copied the song because he did not intend to. The similarities in the songs may have been a coincidence of his subconscious, Mr. Bolton swore, but he did not intentionally make a substantially similar song. The court did not buy his argument, holding that since Mr. Bolton listened to the Isley Brothers’ music as a child and was familiar with their songs, he did infringe on their work, even if subconsciously. The trial court’s award of $5.4 million to the Isley Brothers was upheld on appeal, still the largest payout for musical copyright infringement ever in the United States.
Could Usher face the same fate? Possibly, but not likely. Though the judge in the Isley Brothers case didn’t emphasize this fact, I’m pretty sure that the songs having the same exact title had a bearing on the jury’s decision, and even on the judge’s decision on appeal. In addition, unlike Mr. Bolton who had listened to Isley Brothers music as a boy, Usher did not grow up listening to Reel Tight (I mean, no one did.). While the Isley Brothers are a well-known R&B group who had several hit albums to their credit at the time of their suit, Reel Tight – not so much. It is not implausible that Usher’s team came up with the melodies and introduction coincidentally rather than by copying Reel Tight’s version of the song.
I won’t say that Mr. Straughter has absolutely no chance of winning, but I will say that he has an uphill battle ahead of him. Take a listen to the songs and you be the judge: