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1. Kanye Cleared of Copying
Highest Court N.D. Illinois
Year Ended 2011
Plaintiffs Songwriter(s)
Defendants Monopoly, John
Rock-A-Fella Records
UMG Records
West, Kanye
Other No Other parties on file
Short Description It is common in the hip hop industry for demo-tape submissions to cause lawsuits, often because the submitter believes recipients ripped off the songs sent in; such cases are normally entirely frivolous. The allegations in this case are a bit more convincing, though the complaint was, in the end, dismissed. Plaintiff is a songwriter who communicated with Kanye West's producer and record label executive, John Monopoly, who agreed to act as Plaintiff's executive producer for an upcoming recording. Among the songs transmitted to Monopoly was a song called "Stronger," which employed the classic cliche, "what doesn't kill me makes me stronger," rhymed with a line about not waiting any "longer" and the word "wronger" (which is grammatically-correct). When West released an immensely-popular song employing this same rhyming trio, Plaintiff sued for copyright infringement. Though the court found both that West had ample opportunity to hear Plaintiff's song and that the above-mentioned elements of the songs were indeed similar, and furthermore that both songs contained an odd reference to Kate Moss, none of the similarities pertained to protectable (e.g. copyrightable) elements. Thus, even if West did indeed copy Plaintiff's song, the elements copied included a common public domain maxim and several obvious rhyming words. Plaintiff was unable to show "fragmented literal similarity," a doctrine accepted in some circuits, because West's song contained no identical phrases to Plaintiff's. Since the musical accompaniment in the two songs were very different, the lyrics were the only feasible basis for Plaintiff's complaint. Therefore, Plaintiff's case failed. - LSW


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2. Victory to Virgin: "Hawthorne's Ours!"
Highest Court N.D. Illinois
Year Ended 2011
Plaintiffs Victory Records
Defendants Virgin Records
Other Hawthorne Heights
Short Description Hawthorne Height's public "beef" with Victory records has been, as the court acknowledged, well-documented. When Victory Records sought to ensure that Hawthorne's 2006 album, "If Only You Were Lonely," beat out Ne-Yo's concurrently-released album on the Billboard 200, the label published a "manifesto" in Hawthorne's name, framing the two releases as a battle between rock and rap, which many people construed as racist. Furthermore, they encouraged Victory "street team" members to hide the Ne-Yo album to prevent it from being purchased. A very public lawsuit erupted in which, interestingly, Hawthorne was released from their Victory contract because the label's owner, Tony Victory (nee Brummel) forgot to put an exclusivity provision in the agreement (see "Hawthorne Heights Contract Exclusive?"). This lawsuit followed several years later, brought by Victory against Virgin Records, the label with whom the band subsequently signed, though they are no longer on the roster. Victory argued that the band's dismal sales on their third album resulted from Virgin's "interference." In this opinion, the court granted Virgin's motion in limine to exclude Victory's expert witness from testifying about the damages Victory incurred from Virgin's interference. The court held that 1) the expert incorrectly relied on Victory's internal figures, as opposed to objective outside sources, 2) Victory's expert employed the "yardstick" method for determining lost sales, but only used one band, Paramore, as a comparison, and 3) the expert failed to consider convincing alternative reasons for the band's low sales, such as negativity surrounding the "manifesto" and anti-rap campaign that was very negatively perceived by the purchasing public. Expert not allowed. - LSW


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3. Stepney's Family Wants Royalties
Highest Court N.D. Illinois
Year Ended 2011
Plaintiffs Estate of Artist(s)
Music Publisher(s)
Trust of Artist(s)
Defendants UMG Records
Other Stepney, Charles
Short Description Charles Stepney was the head producer at Chess Records, the pivotal Chicago-based record label immortalized in the movie "Cadillac Records," for some years during the late 1960s and 1970s, after time as a staff producer. Under his agreement with Chess, Stepney was to be paid a 3% royalty on 90% of the records released containing only his material, and half that percentage on foreign sales. However, when he died in 1976, he had only been provided with two accounting statements, which should have been tendered twice a year. His rights passed to his wife through his estate, and his wife died in 2008, after which Stepney's children, in the name of his estate and their newly-created trust, sued UMG--Chess's successor-in-interest--for breach of contract and fiduciary duties and multiple equitable remedies. In this opinion, the court ruled only on three counts of the complaint, dismissing Plaintiffs' claims for breach of fiduciary duty, because no fiduciary relationship was alleged, and constructive trust, because it is a remedy and not an independent cause of action. However, Plaintiffs' claim for unjust enrichment was not dismissed. Other causes of action were not discussed. - LSW


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4. Bassist Wants REAL Job Back
Highest Court Seventh Circuit
Year Ended 2010
Plaintiffs Band Member(s)
Defendants U.S. Postal Service
Other BANG!
Short Description U.S. Postal worker, Kenneth Truhlar, sued the postal union and the Postal Service for being fired for securing outside employment while receiving disability payments, when he earned around $8,000 from a stint as bassist for a modern incarnation of an obscure early 1970s rock group called "BANG!" The court entered judgment for the union, holding that failing to honor Plaintiff's grievance was not arbitrary, and that Plaintiff failed to establish that the union breached its duty to represent Plaintiff fairly during the grievance process . - LSW & SKR


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5. Surviving Survivors Sue
Highest Court N.D. Illinois
Year Ended 2010
Plaintiffs Band Member(s)
Survivor
Defendants Band Member(s)
Other Peterik, Jim
Scotti Brothers Records
Short Description Survivor is, without a doubt, best-known for their massive hit, "Eye of the Tiger," that functioned as the theme song to Rocky III. However, they had other hits, and have continued to perform as a band up until today. Plaintiffs in this lawsuit are the band's founder and the band's corporate entity, while Defendants are members of the band who had been with the band at the time "Eye" was recorded and released. In the early days of the band, the members formed a joint venture, which allowed for replacement members to become full venturers in the agreement. Plaintiffs joined the band sometime thereafter. Prior to this lawsuit, in the mid-1990s, members of the band Survivor, including Plaintiffs but not Defendants, realized they had not been tendered royalties or statements by Scotti Brothers, the record label with which they had previously signed. Plaintiffs brought suit, and the parties settled, with 20% of royalties paid to songwriter/producer Jim Peterik and 80% paid to Survivor. However, Plaintiffs represented to Defendants, when Defendants re-joined the band in the late 1990s, that no royalties were forthcoming, because the band was indebted to their record label. This court opinion, which does not state the reason for Plaintiff's lawsuit, addresses Defendants' counterclaims alleging that Plaintiffs committed various wrongs (see the attached list of legal issues) relating to the concealment of Plaintiffs' settlement for royalty payments and subsequent receipt of those royalties. On Plaintiff's motion to dismiss counterclaims, the court found that Defendants introduced evidence, beyond the speculative level, that they were full members of the band (pursuant to the joint venture agreement and subsequent record contracts), and were thus owed royalties, which were not paid by Plaintiffs. Furthermore, Defendants' fraud claims were properly stated, even under heightened pleading requirements, because they alleged that Plaintiffs intentionally misled Defendants into believing no royalties were forthcoming, despite the settlement. Last, because Defendants learned of the nonpayment of royalties in 2009, when Peterik told them of his 20% interest, the statute of limitations had not run. In a related subsequent ruling, the court held Defendants were not judicially estopped from asserting claims against Plaintiffs for royalties, despite not having claimed the royalties or cited the contracts amongst the band members and with Scotti Brothers in a previous bankruptcy proceeding. - LSW


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6. Obscure Disco Royalty Dispute
Highest Court N.D. Illinois
Year Ended 2010
Plaintiffs Music Producer(s)
Songwriter(s)
Defendants Music Distributor(s)
Music Executive(s)
Music Publisher(s)
Record Label(s)
Other Air Power
Short Description Air Power is an obscure disco act that released several singles in 1978, each of which is subject to this dispute, that received limited-but-noteworthy public reception. Defendants are various companies--record labels, publishers, distributors--involved in the release of the singles, and the executive at their helms. Plaintiff, one of Air Power's principal songwriters, producers, and publishers, alleged that he was never paid any royalties from the original release of the songs in 1978, though one song sold around 25,000 copies within a few weeks. He sued for fraud, breach of contract, and termination of the copyrights granted to Defendants. On a motion to dismiss on the pleadings, the court found for Defendant. Plaintiff had no right to terminate the grant to Defendants, because Plaintiff was only one of two co-authors, and his co-writer did not agree to termination. Regarding the breach of contract and fraud claims, Plaintiff's case may have been successful, if only it was brought 25 years earlier. Now there's a little something called the statute of limitations. - LSW


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7. Chiding Destiny's Child
Highest Court N.D. Illinois
Year Ended 2009
Plaintiffs Songwriter(s)
Defendants Beyonc?
Blackwood Music
Columbia Records
Destiny's Child
Jerkins, Rodney "Darkchild"
McDonald's
Music Producer(s)
Music Publisher(s)
Songwriter(s)
Sony BMG Music Entertainment
Sony Music
Sony/ATV Music
Other No Other parties on file
Short Description Sometime in the early 1990s, Plaintiff wrote a song called "Cater 2 U," revolving around "the premise of a heterosexual monogamous relationship with interaction between the lovers in a private residential setting." In 2004, Destiny's Child released a song called "Cater 2 U," written and produced by various Defendants, including Rodney "Darkchild" Jerkins, and performed by the women of Destiny's Child. Plaintiff brought suit, alleging Defendants copied his song. He also sued his own personal manager for contract breach and fiduciary duties, alleging Defendants' access to his work was his manager's fault. The court denied both parties' motions for summary judgment at this stage. Because the facts must be interpreted in a light favorable to Plaintiff on Defendants' motion, the court held that Plaintiff had stated reasonable basis for Defendants' access to his work; he had given the song to a third person with professional relationships to key Defendants. Furthermore, the court found that a reasonable jury might, from the facts presented at this stage and interpreted in Plaintiff's favor, find that Defendants' song copied Plaintiffs' hook line or overall lyrics (but not the music, which wasn't similar), and that Defendants did not independently create their song. Furthermore, it is feasible that the industry Defendants will be vicariously liable. However, claims against Plaintiff's manager were disposed of. - LSW


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8. "Is it Because I'm Sampling?"
Highest Court N.D. Illinois
Year Ended 2008
Plaintiffs Johnson, Syl
Jones, Jimmy
Songwriter(s)
Defendants Bertelsman Music Group (BMG)
Cypress Hill
MCA Music
Music Producer(s)
Music Publisher(s)
Sony BMG Music
Sony Music
Universal Music
Universal-MCA Music
Other No Other parties on file
Short Description Plaintiffs are the original writers of the 1969 song, "Is it Because I'm Black?" performed by Syl Johnson, here suing the band Cypress Hill for unlicensed use of the song as background track during a musical interlude on their album. Plaintiff Johnson's action was dismissed for lack of copyright registration, bu his co-writers' (including Jimmy Jones) motions were granted and not barred by laches. - [This entry is not yet complete or has not been edited/checked.]


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9. Duranguense Bands in Court
Highest Court N.D. Illinois
Year Ended 2007
Plaintiffs Record Label(s)
Defendants Aliados de la Sierra
Other Alacranes Musical
Short Description This lawsuit is between two "duranguense" bands, Plaintiffs being a somewhat well-known group called Alacranes Musical, which means "Musical Scorpions." Defendants, Aliados de la Sierra, are a competing group containing a former vocalist, Sergio Federico, who brought some Alacranes songs to his new band, which boasts a stylized scorpion logo similar to Plaintiffs. Plaintiffs sued, and the court denied all Defendants' motions to dismiss, finding likelihood of confusion and breach of contract claims requiring further fact-finding for proper decision. - LSW


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10. Kanye Rejects Old Contract
Highest Court N.D. Illinois
Year Ended 2007
Plaintiffs West, Kanye
Defendants E-Smoove
Record Label(s)
Other No Other parties on file
Short Description Kanye West filed this action for declaratory judgment that a contract he entered with Defendant E-Smoove (a Chicago-based producer/manager/label owner) in 1995 was not valid and that Defendant had no ownership rights to recordings made pursuant to that agreement. Defendant counterclaimed for declaratory judgment alleging opposite conculsions, also including claims for fraud, unfair competition, and other related causes of action. Defendant Smoove sought discovery of West's contract with Roc-A-Fella Records, which West denied. The District Court Magistrate Judge held the contract was not discoverable; not only was the contract with Roc unrelated to the issue of whether a contract ever existed with Defendant, it was irrelevant to the monetary worth of such a contract if it existed, at a time when West was unknown. Furthermore, Defendant's undue delay in requesting the document, waiting until 11 days before the end of discovery, was inexcusable and barred Defendant's requests. The Magistrate's denial was affirmed on objection. - LSW


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11. Hawthorne Heights Contract Exclusive?
Highest Court N.D. Illinois
Year Ended 2007
Plaintiffs Hawthorne Heights
Defendants Brummel, Tony "Victory"
Music Publisher(s)
Victory Records
Other No Other parties on file
Short Description Hawthorne Heights, one of the biggest acts of the early 2000s "emo" explosion, rose through the ranks of music stardom through the infamous independent record label, Chicago-based Victory Records, which is renowned in the business for its owner's aggressiveness and irratic behavior, as well as the labels' extensive control over artists' income and contractual freedom. When HH wanted to leave the label and pursue a more fruitful career at a label with less-scary executives, they sued and--miraculously--were so freed. It happens to be that Tony "Victory" Brummel, the label's outspoken owner, who purportedly insists on writing his own contracts himself, neglected to include any language of exclusivity. That means HH must still record more albums for Victory, as per the contract, but they are not barred from recording for others. They signed to Virgin, but the label problems stunted their momentum. They recently signed to Wind-Up another large indie. - LSW


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12. Bodyguard: "I'm R. Kelly's Mentor!"
Highest Court N.D. Illinois
Year Ended 2007
Plaintiffs Individual(s)
Defendants Kelly, R.
Other No Other parties on file
Short Description The former security guard for R. Kelly claimed to have been more than hired muscle, but also a close friend and "mentor," who advised Kelly to learn a dance style known as "steppin,'" taught Kelly how to do the move, and helped Kelly write the song, "Step in the Name of Love." Plaintiff argued he'd offered his assistance and talents at a time when Kelly's public reputation was suffering, and, after the song and dance were released, Kelly's career was revitalized. Plantiff alleged Kelly promised him half the proceeds, and sued R. for breach of oral contract, unjust enrichment, fraud, and even assault. Kelly removed the case to federal court, saying Plaintiff's unjust enrichment claims were simply disguised copyright actions, and the court agreed. Misappropriation of Plaintiff's song and dance is either infringement or an argument for joint authorship, both falling within copyright's ambit, and does not contain the "extra element" necessary to remove it from exclusive federal jurisdiction. While the fraud, contract, and assault claims may stand, they will be tried in federal court as well. - LSW


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13. Flamingos Song in Pepsi Ad
Highest Court N.D. Illinois
Year Ended 2006
Plaintiffs Family of Artist(s)
Flamingos
Defendants Advertising Producer(s)
Pepsico
Other No Other parties on file
Short Description Pepsi used the Flamingos' 1950s hit, "I Only Have Eyes for You," during a superbowl commercial. Though Defendants arguably had a license for the copyright, Plaintiffs (former members and family) sued, alleging Defendants violated terms of a collective bargaining agreement relevant to "commercial contracts," as determined by the American Federation of Television and Radio Artists (AFTRA), which was binding on Defendants, by not first negotiating for rights with the "principal performers." (In other words, Defendants needed to ask the Flamingos before asking the copyright's owner). Both parties submitted to an arbitrator, which found for Plaintiffs and held that, by pursuing litigation, Plaintiffs were not limited solely to liquidated damages under he agreement. The arbitrator awarded Plaintiff's $250,000. Defendants moved to have arbitration rejected, saying it was contrary to the express language of the collective bargaining contract, which contained a liquidated damages provision. The Illinois District Court held the arbitrator's decision was not contrary to such language, since the contract did not expressly limit damages in any way, and that its holding did not fail to "draw its essence from the contract." Arbitration award upheld. - LSW


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14. Dave Matthews's "Gross Negligence"
Highest Court N.D. Illinois
Year Ended 2005
Plaintiffs Chartered Boat(s)
Defendants Bus Driver(s)
Matthews, Dave (Band)
Other No Other parties on file
Short Description (Note: read this entry to the end or you'll miss the whole point.) While driving over the river running through downtown Chicago, Dave Matthews' tour bus dumped gallons of human waste, knowing it would fall through the grates in the bridge underneath, which it did. Of course, underneath the bus was a cruise ship, and the waste landed on passengers enjoying their sunny summer afternoon on the water. According to the court "a foul-smelling, brownish-yellow liquid [] drenched the vessel and dozens of its passengers, getting into passengers' eyes, mouths, and hair and soaking their clothing and personal belongings." Unsurprisingly, the chartered boat company sued, alleging trespass, nusiance, intereference with business, negligence, and, of course, "gross negligence." Defendants moved to dismiss, saying Plaintiffs had not stated and could not state lost profits, as required by the "economic loss rule." The court disagreed, since the facts fit an exception for "sudden, dangerous or calamitous events," and refused Defendant's motion to dismiss trespass, nuisance, and negligence actions, all of which were sufficiently stated, but dismissed Plaintiffs action for "intentional interference with business realtions" for lack of intentionality. Regarding Plaintiff's action for "gross negligence," the court found no such tort existed in Illinois; dumping shit and piss on crusing yuppies might be negligence, but it's NOT "gross." Given the facts of the case, that seems comedically improper. Thus, not only is this a great case discussing the parameters of tort law, it's an interesting exercise into the difference between "coincidence" and "irony." Which is it? You decide.- LSW


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15. Problems Distributing Bowie
Highest Court Seventh Circuit
Year Ended 2003
Plaintiffs Record Label(s)
Defendants Defries, Tony
Music Publisher(s)
Record Label(s)
Rykodisc Records
Other Bowie, David
Short Description Plaintiff is a music company that purchased interests in David Bowie recordings. The purchase included a prior-existing a cause of action against Defendants. Plaintiff's predecessor's allegedly received a license from Defendants to distribute the Bowie tunes in question, but Defendants repudiated the deal and sought to prevent Plaintiff from exploiting their rights under the agreement. Though most of Plaintiff's causes of action were disposed of summarily by the court, the claim for breach of contract was allowed to proceed, despite Plaintiff's "tardy" service of process. However, even after allowing the contract claim to proceed, Plaintiff failed to prosecute the case, and it was once again dismissed. On appeal, the Seventh Circuit reconsidered the dismissal, but affirmed, finding diversity jurisdiction existed and the court had the right to re-evaluate Plaintiff's argument for its delayed prosecution. Unfortunately, "my lawyer was depressed" is a bad excuse. - LSW


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16. Survivor Show Survives Survivor Band
Highest Court N.D. Illinois
Year Ended 2002
Plaintiffs Band Member(s)
Defendants CBS, Inc.
Television Producer(s)
TVT Records
Other Survivor
Short Description Frankie Sullivan, the one constant member of the 1980s band Survivor, brought suit against CBS and the producers of the TV show "Survivor" for trademark dilution. Sullivan and another member, Jim Peterik (a veteran of multiple bands including The Ides of March), registered the trademark in 1994. While not releasing music, the band continued to tour and sell merchandise. In 2000, the TV premiered, and released CDs of the show's music emblazoned with the title "Survivor." Unfortunately for Sullivan, surveys showed that less than 2% of people thought of his band when shown the TV show's CDs. In applying a seven-factor test, the court decided that the TV Survivor had "outwitted, outlasted, and outplayed" Sullivan. - JMC


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17. Songwriter: "R. Kelly Copied Me!"
Highest Court N.D. Illinois
Year Ended 2000
Plaintiffs Songwriter(s)
Defendants Atlantic Records
Individual(s)
Jive Records
Kelly, R.
Music Publisher(s)
Time Warner, Inc.
Warner Bros. Pictures
Warner-Chappell Music
Zomba Music
Zomba Records
Other No Other parties on file
Short Description Plaintiff is an unknown songwriter who sued R. Kelly and his record labels, producers, and music publishers, arguing that Kelly's "I Believe I Can Fly," made famous on the "Space Jam" soundtrack, was copied from a song Plaintiff previously copyrighted with the same name. He sued for copyright infringement and various iterations of state and federal unfair competition and trademark laws. While Kelly's parties argued Plaintiff's non-copyright actions were preempted, the court held preemption was not the applicable doctrine to Lanham Act claims, but that, nevertheless, the Copyright Act is intended to encompass all actions within its own ambit. For valid federal unfair competition causes, Plaintiff needed to allege some affirmative misrepresentation beyond mere appropriation of copyrighted material, of which there were none. This is similar to the "extra element" test for preemption. The state actions, however, were preempted for precisely the same reason. The copyright claims were not reached, but all other counts were disposed by dismissal. - LSW


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18. Guitar Maker vs. Prince's Guitar
Highest Court Seventh Circuit
Year Ended 2000
Plaintiffs Instrument Designer(s)
Defendants Prince
Other No Other parties on file
Short Description Plaintiff was a guitar designer who, without Prince's permission, made a guitar in the shape of Prince's symbol, seemingly with the intent that prince would adopt it for his stage performance. When Prince later made a guitar in the same shape, the Plaintiff designer sued, alleging Prince's guitar-logo combination copied Plaintiff's copyrighted creation. In initial court filings, Prince (then "the artist formerly known as") actually used his symbol on legal documents, which the court said he could not do. Judgment for Prince. - [This entry is not yet complete or has not been edited/checked.]


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19. Classics Have Copyrights Too, You Know
Highest Court N.D. Illinois
Year Ended 1999
Plaintiffs Chi-Lites
Everett, Betty
Hawkins, Screamin' Jay
Jordan, Louis
Leadbelly
Spaniels
Turner, Big Joe
Ward, Clara
Defendants Music Distributor(s)
Other No Other parties on file
Short Description Plaintiffs are a group of musicians, including the Chi-Lites, Leadbelly, Screamin' Jay Hawkins, and others, suing Defendant for distributing products containing Plaintiffs' music without proper licenses. Defendant, a New Jersey corporation, sought to dismiss, alleging it did not have sufficient contacts with Illinois to justify personal jurisdiction. The court, however, disagreed, finding the selling and active distribution of music within the state of Illinois sufficient. - LSW


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20. Industria Del Amor Copied?
Highest Court N.D. Illinois
Year Ended 1999
Plaintiffs Songwriter(s)
Defendants Fonovisa Records
Individual(s)
Industria Del Amor
Other No Other parties on file
Short Description Plaintiff is a 31-year-old taxi driver in the city of Chicago, and an amateur songwriter alleging the band Industria Del Amor infringed his copyrighted song, "Cuando Escuches Mi Cancion," in Industrua's song "Amigo Locutor." Plaintiff sued the band, their record label (Fonovisa) and others. The court held for Defendants. Plaintiff met the band and presented songs to them in 1996 when he learned they were staying at a hotel in town, after he finagled his way into their room. However, Defendants could show they wrote the allegedly infringing song prior to this incident, and, further, the court held the two songs were not substantially similar in any protectible manner (only the general subject matter, about asking a DJ to play a song for a love interest was the same). - LSW


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