It’s not so much that anyone even knew, much less cared, that there was a copyright infringement case involving “You Raise Me Up,” by Josh Groban and Westlife. It’s more that now that the case has been dismissed it joins recent judgments on famous infringement cases around “Stairway To Heaven” and “Dark Horse” to collectively herald that the pendulum has swung back and infringement is a more difficult case to make. And that the most notorious case of them all, “Blurred Lines,” is less prologue than past and more anomaly than new normal.
The “You Raise Me Up” decision will be seen as further evidence of this in part because the judge was especially direct in criticizing the work of the plaintiff’s musicologist, who by the way was the same musicologist who helped the Marvin Gaye estate win a controversial judgement against Pharrell Williams and Robin Thicke in the “Blurred Lines” case.
Norwegian composer “Rolf Lovland” composed “You Raise Me Up,” and Icelandic singer-songwriter Johann Helgason brought this suit claiming Lovland infringed on Helgason’s 1977 song, ‘Soknudur.’
Here are both.
But according to variety, the judge wrote that the musicologist “reports fail to describe reliable principles and methodology, fail to apply such principles and methodology to the facts, and fail to properly apply the extrinsic test, rendering the reports unreliable, unhelpful, and inadmissible.”
The “extrinsic test” focuses on the objective similarities as might be analyzed and illuminated by expert testimony. Its complement, the “intrinsic test,” is the more subjective evaluation of the total concept and feel of the two works, and more the domain of the lay listener, or a jury. But unless the extrinsic test holds up, the intrinsic test never gets its chance. So the extrinsic test is the one that gets a case dismissed as a matter of law, as it has here.
Most interesting is that there are specific criticisms and dismissals of the points made in the plaintiff’s musicologist report. Again, according to variety, the judge wrote:
… (the musicologist report) “considers notes to be similar even when they appear in different places in the songs’ melodies.” and “offers no justification for this technique of considering notes to be similar despite different metric placements in the melody.” and it “opines that ‘identical pitches found in succession in both songs’ are similarities, but then admits that there are intervening pitches between some of these notes. Again, there appears to be no justification for deeming notes to be consecutive when in fact there is an intervening note between them.”
I’m going to take issue with that.
I wrote recently about a classic case, Swirsky vs Carey (Mariah) in which the plaintiff’s musicologist had provided transcriptions (sheet music) that intentionally omitted certain notes. The court saw this as an obvious flaw in the analysis and ultimately ruled against Swirsky. But I wrote in “Why The Stairway And Dark Horse Rulings Solve Nothing. Pt 2.” that was perhaps a misinterpretation which led to error on the part of the judge, ruling on it rather than reserving it for the jury. And something similar may have happened here in the “You Lift Me Up” case. If this musicologist report indeed “opines that ‘identical pitches found in succession in both songs’ are similarities, but then admits that there are intervening pitches between some of these notes,” that’s possibly completely valid; it may just require explanation. Okay, an adequate explanation may have been lacking. But the decision continues, “Again, there appears to be no justification for deeming notes to be consecutive when in fact there is an intervening note between them,” but “consecutive” is not precisely the point, nor is it precisely a quote from the report. “Succession” does not require “consecutiveness,” does it?
Evidently, it was argued by the defendant’s musicologist, rightly, that there are elements in both ‘You Raise Me Up’ and ‘Soknudur” that can be found in “Danny Boy,” and such an argument would go onto say that those are, therefore “not original,” “public domain,” etc. The decision includes, according to Variety, that “once similarities with “Danny Boy” are excluded, the two songs are not clearly similar.”
Excluded? Yes, this is the idea that we can filter out whatever is Danny Boy, and then only look at what remains.
From a musicology standpoint, it’s an interesting question. “You Raise Me Up,” could almost have been the result of a composition exercise: “You are asked to write a new song through interpolations and variations of the themes found in Danny Boy.” If the same were said of “Soknudur,” it could be a bit of a “selection and arrangement” question maybe? Ew. But that’s a legal-ish aside. Here, I’m asking whether judges should be interpreting and ruling on precisely how we “exclude” the elements of similarity present in “Danny Boy” to determine what remains to be considered. This is what experts do; it’s not the domain of laypersons, and it seems questionable if it’s the domain of the trier of fact.
I’d be ticked off.