March 29, 2016 Update: Case got dismissed with no settlement. When you read below, you will see the defendants had a very strong argument supporting there was no copyright infringement.
Sidney Earl Swanson filed a lawsuit against Sony, MJ Estate, Timbaland and Cory Rooney (defendants) claiming the new version of the “Chicago” song infringed his song “On the Move / On the Edge”. Parties participated in discovery and here are the latest developments.
First of all Cory Rooney have been dismissed from the lawsuit. This makes sense given Swanson claims the new version of “Chicago” song infringes his song and not the original version. The new song – and the allegedly infringing part – seems to be Timbaland’s work and released by Sony and MJ Estate.
The defendants have filed a motion for summary judgment to dimiss the case. Defendants are claiming Swanson’s case is baseless. To prove copyright infringement, Swanson will need to prove that his song was widely disseminated (therefore Timbaland and/or the rest of the defendants had access to it) and his song is substantially similar to the new version of “Chicago”. Defendants deny both and state that there wasn't any infringement.
This is what we learn:
Swanson have worked at a steel mill and as a self-employed trucker and played as a musician in small venues. He never had a recording or publishing contract and never licensed his song. The song did not air on radio or TV and was never sold in stores. His song were made available on Amazon 6 months after the release of “Xscape” and new version of “Chicago”. Swanson also said in his deposition that he never met any of the parties (MJ, Timbaland, Sony, and Estate) and never sent / gave them copies of his song.
We also learn about the origins of Swanson’s song. Swanson says he created the song “On the Edge” in 1976 when he was a high school senior. The song was an instrumental song. In 2002 – 26 years after the creation- he registers his song with the copyright office. A few months later he registered “On the Move” saying it was created in 1995. “On the Edge” and “On the Move” are the same songs. All of the copyright registrations are “PA” (published or unpublished works of performing arts) and he never got a “SR” (sound recording) registration. Therefore technically speaking Swanson does not have a copyright to the sound recording. Furthermore multiple registrations of the same song with different creation dates are also problematic and can make the copyright registrations invalid.
Defendants argue that Swanson cannot prove that his song was widely disseminated. According to his deposition testimony he performed the song 38 times at small venues since 1976 and sold a total of 1500 cassettes / CD’s containing the song. So in other words in the last 40 years, on average Swanson performed the song once a year and sold 38 copies of it per year. Therefore defendants argue that this doesn’t show widely dissemination of the song and Swanson cannot prove access to his song by the defendants. Defendants in their depositions said they never met Swanson and never heard his songs.
The alleged similarity for the songs is the bass line. Perhaps most interestingly the musicologist hired by Swanson mentions the similarity between the bass lines but the expert think the songs do not have substantial similarities and the similarities are commonplace and unprotected musical elements. Swanson’s own expert says “bass lines and accompanying harmonies are most obvious similarity” between the two works but continues to say “an ascending bass line or a related vocal line is not original with either work and is likely to be found in the literature, at least in terms of the pitch sequence although not necessarily with the exact scale degrees, rhythms, or harmonies found in either work here”.
Defendant’s expert musicologist in his 100 page report provide more details. According to defendants expert the similarities are (1) a portion (4 notes) of an ascending minor scale; (2) a basic “i-iv-i” blues chord progression, or harmony; and (3) a 4 note rhythm consisting of what is commonly known as the “bossa nova.” According to the expert report the ascending minor scale “is a basic musical block” that every student learns. The blues harmonic progression is also very common and widely used. Songs such as “Night Train” (James Brown), “Rock Around the Clock”(Bill Haley) had the same progression. Finally rhythm of the bass part is a simple bossa nova. It was also used in popular songs such as “Chameleon” (Herbie Hancock) and “That’s the Way (I Like It)” (KC and the Sunshine Band). Furthermore the bossa nova is taught in student method books and is also widely used by Timbaland in other songs he produced.
Furthermore the songs have a lot of differences as well. Defendant's expert list the differences as “ 1) the vocal melodies in the Re-Worked Chicago are very different from any melody in On the Move, which has no lyrics; (2) the overall composition trajectories of the two works are entirely different; (3) there are significant structural differences between the two works, i.e., the Re-Worked Chicago includes verse, chorus and bridge sections, but On the Move does not and the duration of the sections in the two works (and their harmonic progressions) are also very different; (4) the two works have harmonic differences; and (5) the two works have different rhythms, such that only one measure of On the Move is even minimally similar to the Re-Worked Chicago and even that measure is expressed differently in the two works.”
Overall the defendants argue that all of the similar elements are actually basic and common musical building blocks and cannot be used to claim copyright infringement.
Hearing for the summary judgment is set for April 11, 2016. If the defendants don’t succeed in their dismissal request, the trial is set for June 14, 2016.