Smith et al. v. The Weeknd et al.

Copyright infringement

Central District of California

U.S. District Judge Percy Anderson

Peter Anderson

Defense Lawyers: Davis Wright Tremaine LLP, Peter J. Anderson; Sheppard, Mullin, Richter & Hampton LLP, Nicolette A. Vairo

Plaintiff's Lawyers: Foran Glennon Palondech Ponzi & Rudloff PC, James D. Glennon, Tracey A. Jordan, Diana R. Lotfi, Thomas B. Orlando

As one of the first cases to apply a recent 9th U.S. Circuit Court of Appeals en banc decision, U.S. District Judge Percy Anderson dismissed a copyright infringement claim brought against Canadian singer and songwriter the Weeknd.

The Central District judge granted Davis Wright Tremaine attorneys Peter J. Anderson and Nicolette A. Vairo's motion for summary judgment in one of a series of lawsuits alleging popular songs infringed other tunes. Vairo is now with Sheppard, Mullin, Richter & Hampton LLP.

Peter Anderson and Vairo represented The Weeknd and a number of defendants, who had participated in the creation, publication and distribution of the song, "A Lonely Night," which was released in 2016 as part of the triple-platinum album "Starboy."

The plaintiffs, three British songwriters, claimed the song infringed on the copyright of their song, "I Need to Love," which had been part of a searchable catalog owned by Universal Music beginning in 2008.

In a motion filed by Anderson and Vairo in July 2020, the defense claimed the plaintiffs' claim was "fatally flawed." Smith et al. v. The Weeknd et al., 19-CV02507 (C.D. Cal., filed April 3, 2019).

"Plaintiffs speculate that 'I Need to Love' might have made its way to an entity defendant, but Plaintiffs concede there is no evidence that 'I Need to Love' was provided to the individuals who created 'A Lonely Night,'" defense attorneys argued.

"Plaintiffs' own expert defeats their attempts to argue striking similarities and substantial similarities," they added in the motion.

In July, the judge granted summary judgment and dismissed the case, citing in part Skidmore v. Led Zeppelin, 952 F.3d 1051 (9th Cir. March 9, 2020), a recent en banc decision argued by Peter Anderson that stated three consecutive notes of a composition are not protectable.

Nicolette Vairo

Three isolated notes or pitches cannot be protectable as a matter of law, no matter how important they might be to a song, Judge Anderson wrote, citing the Led Zeppelin decision.

The judge also wrote there was no evidence that those involved with the creation of "A Lonely Night" ever accessed the plaintiffs' song from the database.

Since the court's dismissal, the plaintiffs have filed a notice of appeal.

James D. Glennon and Thomas B. Orlando, attorneys with Foran Glennon Palondech Ponzi and Rudloff PC, did not respond to requests for comment on the case.

Anderson declined to comment. Vairo could not be reached.

-- Kamila Knaudt