Last Thursday a Nevada corporation sued Justin Bieber, Dan+Shay and others over their 2019 megahit, 10,000 Hours. The corporate plaintiff claims that it’s the copyright owner of The First Time Baby Is A Holiday (“First Time”), a song written over forty years ago and released in 2014, and that 10,000 Hours infringes its copyright. In the complaint, filed in Federal court in Los Angeles, the plaintiff comes at the industry with both barrels:
Creative theft in the entertainment industry has become its own cottage industry. Its perpetrators pillage the labor of lesser-known, hard-working creators, while unapologetically exploiting such work as their own. This flagrant pilfering of the creative victims’ intellectual property is no more alive than in the music industry where innocent songwriters and artists are routinely left as collateral damage. Ergo, this case.
So, this is the other side of the coin to what Ed Sheeran was just quoted as saying, viz., that meritless infringement suits risk stifling creativity in the music industry. Courts do their best to apply copyright law in a way that is fair to both lesser-known artists and industry giants. When in 1956, the California Supreme Court allowed a freelance scriptwriter to present a claim that a movie producer stole his idea, it rejected the movie industry’s argument that doing so would unduly burden it, given the large number of unsolicited scripts containing unoriginal material it receives: “The law, however, is dedicated to the proposition that for every wrong there is a remedy and for the sake of protecting one party it must not close the forum to the other. It will hear both and seek to judge the cause by standards fair to both.” Desny v. Wilder, 46 Cal.2d 715, 734 (1956). And for the most part, our courts do a good job separating the wheat from the chaff.
Back to Bieber. The complaint in the case makes for an interesting read, even if one is not a lawyer, and especially if one is a musician, for it contains a large amount of evidentiary detail about the alleged infringement– something not required or commonly presented at this stage of the case. It even attaches the report of an expert musicologist. Highlights in the body of the complaint allege that: “[T]he percentage of melodic components of First Time that also appear in 10,000 Hours is as high as 83%, or all but two (2) of the twelve (12) notes.”
“[W]hen looking at the core portions of the songs as a whole, 34 of 47 notes– i.e., 72%– in the pitch sequence of the main verse/chorus of First Time appear in the chorus of 10,000 Hours.”
And “a comparison of the rhythm and metric placement of this extended, 47-note sequence demonstrates that nearly 90% of notes— an incredible 42 of 47 notes— are identical in this regard.”
Compelling, but this is just one side’s take. Rest assured that these defendants will likely have outstanding, obscenely expensive lawyers who will present their own, competing interpretation. In the meantime, you can compare the audio of the songs yourself here and here.