Hines v. EMI April Music Inc.

Background

Ernie Hines alleged that he co-authored and composed the 1960s soul song “Help Me Put Out The Flame (In My Heart),” which begins with a three-bar guitar riff. He alleged that the riff was used without permission in “Paper Chase,” performed by Jay-Z and composed and written by Jay-Z and Timbaland, and in “Toe 2 Toe,” composed by Timbaland. Hines sued BMG Rights Management (US) LLC, W Chappell Music Corporation, Jay-Z, and Timbaland for copyright infringement.

The opinion states that Hines first heard the two songs in 2018. The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which allows dismissal when a complaint does not state a legally sufficient claim. BMG initially separately argued that Count II, concerning alleged infringement involving “Paper Chase,” should be dismissed because BMG lacked ownership or other rights in that song. Hines voluntarily dismissed Count II, and BMG then relied on the other defendants’ motion.

The court’s analysis

To state a copyright-infringement claim, a plaintiff must allege a valid copyright, actual copying, and illegal copying shown by substantial similarity between the protectable parts of the works. The court explained that musical compositions may protect original combinations of notes, rhythm, and harmony, although individual notes and common rhythms generally are not protected.

The defendants first argued that Hines had not identified protectable musical content and that the riff was not original because it drew from the public-domain melody “Mysterioso Pizzicato.” The court rejected that argument at the pleading stage. It found that the alleged use of different pitches and rhythmic values supplied at least the small amount of creativity needed for originality, and that Hines had sufficiently alleged that the riff’s notes and rhythm were copied.

The defendants next argued that Hines had not explained how or where the riff appeared in the two songs. The court found that a report by musicologist Joe Bennett alleged that parts of the riff, including a five-note section and the final G-minor chord, repeated in both songs. The report stated that approximately 84 percent of “Paper Chase” contained audio samples of the riff and that part of the riff formed the guitar loop in “Toe 2 Toe.” The court held that these allegations supported an inference of copying and access to the recording.

The court did not decide whether the songs were substantially similar as a matter of law. It stated that the technical nature of the allegations made discovery or expert testimony potentially useful. The defendants also argued that the three-measure riff was too small a portion of Hines’s song to constitute infringement. The court treated this as a question of “fragmented literal similarity,” meaning whether copying a fragment involved a sufficiently important part of the original work. It held that discovery was necessary to assess the riff’s qualitative importance, so it declined to resolve that issue on the motion to dismiss.

Disposition

The court denied the defendants’ motion to dismiss. It directed the defendants to answer the complaint by June 29, 2021. The court also declined the defendants’ alternative request to require Hines to post a bond as security for costs, finding that a bond was not warranted. The opinion is a ruling on a Rule 12(b)(6) motion and therefore does not finally decide whether copyright infringement occurred.