Supreme Court Declines to Hear Copyright Dispute Implicating Josh Groban’s You Raise Me Up

In 2003, Josh Groban had a huge hit with You Raise Me Up. By early 2004, the song had made it to No. 1 on the Billboard Adult Contemporary chart and was played more than 500,000 times on American radio that year. Groban performed the song at Super Bowl XXXVIII, and even as a surprise for Oprah Winfrey’s 50th birthday. Safe to assume the song was a fairly good moneymaker for Groban and Warner Brothers Records, which sold the song through Reprise.

Not everyone, however, was smiling and singing along, arms raised high. In 2018, Icelandic corporation Johannsongs Publishing sued Warner and others in Federal court in California, claiming that it owned the rights to a 1977 song Soknudur— the most famous and best-selling song in Iceland— which was then allegedly stolen and renamed “You Raise Me Up” by Norwegian artist Rolf Lovland. According to Johannsongs, this purloined tune was the origin of Groban’s megahit.

The case required Johannsongs to prove the “substantial similarity” of the two songs. In the Ninth Circuit, this breaks out into two required tests: “extrinsic” and “intrinsic.” The extrinsic test compares the objective similarities of specific expressive elements in the two works, and often requires expert (i.e.musicologist) analysis. The intrinsic test operates from the standpoint of the ordinary observer, with no expert assistance.

It must be stressed, though, that a finding of substantial similarity can’t turn on similarities in “unprotectable” elements – i.e., elements the author took from others. This is because copyright protection inheres only in those elements of the work that are truly original to the author. Thus, a copyright on Soknudur would not provide its owner with a monopoly on elements that were taken from other songs.

And this is why the plaintiff lost the case. The district court ruled that the similar elements between Soknudur and You Raise Me Up were not original to Soknudur, but were from Londonderry Air– an Irish folk tune first published in 1855 and set to lyrics in 1913 in the well-known Irish song Danny Boy. Those elements are not owned by anyone, but are in the public domain and as such, are not even part of Soknudur’s copyright.

The Ninth Circuit upheld the judgement in 2021. The plaintiff then sought intervention from the Supreme Court, arguing that the Ninth Circuit’s extrinsic/intrinsic framework represents a circuit split with the Second Circuit’s “ordinary observer” test (used in this case). Yesterday, the Supreme Court declined to hear the case.