On July 24, 2019, The Music Force (TMF), a Nashville based company, filed a claim of copyright infringement against Lil Nas X (Montero Lamar Hill) and Sony Music, Lil Nas X’s record company. TMF’s complaint alleges that Lil Nas X’s song “Carry On” infringed the copyright to Billy Caldwell’s 1982 song “Carry On.” The complaint was filed in the Central District of California and seeks at least $10 million in damages.
TMF owns the rights to the song “Carry On” by Billy Caldwell, including the copyright, which was registered in the Copyright Office in 1982. Caldwell is best known for his hit song “What You Won’t Do for Love,” which was released in a heart shaped, vinyl edition in 1978.
In 2019, Lil Nas X signed a recording contract with Sony, which acquired all the rights to services and recordings of Lil Nas X. On February 4, 2020, The Music Force filed an amended complaint against Lil Nas X and Sony Music alleging Lil Nas X’s song “Carry On” infringed upon Bobby Caldwell’s song “Carry On.” Under copyright law, a title cannot be copyrighted so TMF’s allegation is not based on the identical titles. TMF alleges that Lil Nas X, without consent or license, appropriated parts of Caldwell’s “Carry On” for Lil Nas X’s song “Carry On.”
For TMF to prove copyright infringement in the Ninth Circuit (where the case was filed), it must show that (1) it owned a valid copyright on the song “Carry On” (which seems clear with copyright registration of the work) and (2) Lil Nas X unlawfully copied elements of Caldwell’s song in his song “Carry On” such that it constitutes misappropriation. In Skidmore v. Led Zeppelin, the en banc Ninth Circuit recently explained the several components to the second requirement often collectively referred to as “substantial similarity.”
(1) Copying: The plaintiff must first prove that the defendant copied from the plaintiff’s copyrighted work by either (i) directive evidence of the defendant’s copying or (ii) the plaintiff “can attempt to prove it circumstantially by showing that the defendant had access to the plaintiff’s work and that the two works share similarities probative of copying.”
(2) Misappropriation: If copying is proven, the final question is misappropriation. The Ninth Circuit divides this determination into two:
The first part, the extrinsic test, compares the objective similarities of specific expressive elements in the two works. Crucially, because only substantial similarity in protectable expression may constitute actionable copying that results in infringement liability, “it is essential to distinguish between the protected and unprotected material in a plaintiff’s work.”
The second part, the intrinsic test, “test[s] for similarity of expression from the standpoint of the ordinary reasonable observer, with no expert assistance.”
The Music Force’s Allegations of Copying and Misappropriation by Lil Nas X: TMF’s second amended complaint is barebones. It fails to provide specific allegations of Lil Nas X’s copying of the plaintiff’s song, either directly or indirectly through circumstantial evidence. Nor does TMF’s complaint invoke the striking similarity doctrine–although it may be at least arguable. Beyond stating that Lil Nas X did not receive consent to use Caldwell’s song, the second amended complaint offers no specific allegation of how Lil Nas X copied Caldwell or how the two songs are claimed to be “substantially similar.” That said, we listened to the two songs–and they do sound a great deal alike in the melody, at least in places. Indeed, given the identical title (which is not protected by copyright), one might even (mistakenly?) think Lil Nas X’s song is a cover or modern remix version of Caldwell’s song.
(It does not appear that Lil Nas X availed himself of the compulsory license provision, Section 115, of the Copyright Act, which allows artists to make cover versions of existing musical works that have already been publicly distributed. But the compulsory license does not extend to copying a sound recording or any arrangement of the musical work that “change[s] the basic melody or fundamental character of the work.” Section 115 apparently would not apply, in any event.)
Sony’s alleged involvement: TMF included Sony to this suit since Lil Nas X signed him to a record deal after he released “Carry On.” As standard in the music industry, Sony acquired the rights to his works. TMF alleges that Sony failed to perform due diligence when it acquired the rights to Lil Nas X’s song “Carry On.” TMF claims that Sony knew or should have known to ensure that all the elements of Lil Nas X’s “Carry On” were cleared and did not infringe Caldwell’s “Carry On,” given that The Music Force filed the complaint against Lil Nas X before Sony signed Lil Nas X. The complaint alleges that Sony never requested that Lil Nas X’s song “Carry On” be removed from YouTube, Spotify, SoundCloud, or Lil Nas X’s promotional Twitter account because Sony had a financial interest in publishing Lil Nas X’s song. TMF claims Sony had the right to control Lil Nas X’s infringing activity, specifically the distribution and publication of “Carry On,”
Answer: Lil Nas X filed an answer to the second amended complaint on March 4, 2020. In the answer, Lil Nas X denies almost all the allegations made by The Music Force, specifically the ones relating to copyright infringement. Importantly, however, Lil Nas X admits to posting a video of his song “Carry On” on YouTube, but removing it afterwards. Apparently, the copies of the music video of his song still on YouTube were posted by third parties, not by Lil Nas X (or Sony). The answer also raises four defenses: (1) failure to state a claim, (2) fair use, (3) preemption, and (4) mitigation. The answer also asks the court to dismiss The Music Force’s complaint for failure to state a legal claim.
On March 4, 2020, Sony Music also filed a motion to dismiss to the second amended complaint for failing to state a sufficient legal claim against Sony. Sony argues: “there are no factual allegations from which it can be inferred that Sony violated any of Plaintiff’s exclusive rights. Plaintiff’s only allegation concerning Sony is that after the infringing conduct occurred (copying and distribution of the work on various internet sites), Sony acquired the rights to Lil Nas’s services and his existing recordings, including the recording of his composition titled “Carry On.” (See Compl. ¶ 12.) While the Complaint alleges that Sony took no action to remedy the infringement that had allegedly been committed by Lil Nas and Wynter, and accepting for purposes of this motion the truth of this allegation, it cannot support a claim of copyright infringement against any of the Sony entities.”
What’s at Stake: The Music Force is suing Lil Nas X and Sony Music for $10,000,000, restitution and accounting of all gains, profits and advantages, a declaration that The Music Force has an ownership interest in the infringed and infringing versions of “Carry On,” and attorney’s fees. While Lil Nas X’s song “Carry On” isn’t his biggest hit, he is a huge artist. His most popular song “Old Town Road” has over 500,000,000 streams on Spotify and the music video for “Old Town Road” has over 400,000,000 views on YouTube. The music video on YouTube for Lil Nas X’s song “Carry On” has just over 3,000,000 views and is significantly less popular than “Old Town Road,” yet The Music Force is still suing for $10,000,000. No music infringement case in the U.S. has ever awarded such a staggering amount for infringement of one song by another artist. The second amended complaint is thin on alleging specific facts. The court has already dismissed the first complaint, and it might do so again, at least with respect to Sony.
Songs
Documents
Second Amended Complaint (Feb. 19, 2020)
Answer by Lil Nas X (March 4, 2020)
Motion to Dismiss by Sony (March 4, 2020)
Judge
Judge Fernando M. Olguin
Attorneys
Michael R. Shapiro for The Music Force
Zia F. Modabber, Leah Solomon, and Joanna Hill for Lil Nas X, and defendant Sony
Music Infringement 