Judges appear to be getting more and more skeptical of music copyright lawsuits.
In the latest ruling, a federal judge has thrown out a suit claiming that the 2003 Josh Groban song “You Raise Me Up” was based on an Icelandic song from 1977 called “Soknudur.”
The plaintiff, Icelandic singer-songwriter Johann Helgason, hired Judith Finell, the expert musicologist who helped the family of Marvin Gaye win the “Blurred Lines” copyright case against Pharrell Williams and Robin Thicke.
But in a ruling on Friday, U.S. District Judge Andre Birotte found that Finell’s findings in the “Soknudur” case were unreliable.
“The Finell 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,” Birotte ruled.
Finell, reached at her office on Monday, declined to comment.
The ruling appears to be part of a trend of cases just in the last month, in which courts are pushing back on claims of musical similarity. On March 9, the 9th Circuit Court of Appeal ruled in favor of Led Zeppelin, and overturned a legal precedent that made it easier for plaintiffs to sue.
Ten days later, a federal judge overturned a $2.8 million jury verdict involving Katy Perry’s hit “Dark Horse.”
In the latest case, Helgason’s publishing company filed suit in December 2018, alleging that Groban’s hit song was based on Helgason’s 1977 composition. According to the complaint, “Soknudur” was successful in Iceland and is commonly played at funerals and memorial services there.
“You Raise Me Up” was written by Rolf Løvland, a Norwegian composer, and first released by his band in 2001. Groban covered the song in 2003, making it an international hit.
Helgason claimed that Løvland would have had access to “Soknudur” during Løvland’s multiple visits to Iceland in the 1990s, as it was then used as the boarding music on Icelandair. Helgason also claimed that the melody of “You Raise Me Up” was directly lifted from “Soknudur.”
Warner Bros. Records and UMG Recordings, among other defendants, argued that the two songs also bear a striking resemblance to the traditional Irish folk song “Danny Boy,” which is in the public domain, among other prior songs.
In his ruling, Birotte held that once similarities with “Danny Boy” are excluded, the two songs are not clearly similar. He also held that Finell did not squarely address the issue of “prior art” in her expert reports, and picked apart her methodology in some detail.
“Finell considers notes to be similar even when they appear in different places in the songs’ melodies,” the judge wrote. “Finell offers no justification for this technique of considering notes to be similar despite different metric placements in the melody. Second, Finell 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.”
Finell was also criticized for her opinion in the “Blurred Lines” case, during which she persuaded jurors that the song shared a “constellation of similarities” with Gaye’s song “Got to Give It Up.” The Gaye family was awarded $5.3 million in that case.