On February 24, 2020, Yeasayer, a Brooklyn-based band that split up in 2019, filed a complaint against Kendrick Lamar and the Weeknd. The complaint alleges that Lamar and the Weeknd’s 2018 song “Pray For Me” from the superhero film “Black Panther” sound track, infringed the copyright of Yeasayer’s “Sunrise” from 2007 by copying a distinctive choral performance from “Sunrise.” The Complaint (para. 17) describes it as follows: “[It is] comprised of male voices singing in their highest registers, with animated, pulsing vibrato, and developed via distinctive audio post-processing.” Yeasayer sued Lamar, the Weeknd, Doc McKinney, Adam King Feeney, and UMG Recordings, Inc. in the Southern District of New York.

Yeasayer’s Complaint appears to be asserting copyright infringement of both the musical work “Sunrise” and the sound recording via sampling (and alteration) of parts of the recording of “Sunrise.”

Under Arnstein v. Porter, copyright infringement requires a showing of two elements: (1) the defendants copied original expression from the plaintiff’s work and (2) the defendant’s copying constituted misappropriation based on proof of substantial similarities between the two works. For the first element, Yeasayer can offer direct evidence (such as admission to copying) or indirect evidence the defendant had reasonable access to the work in question (such as widespread dissemination). As for showing substantial similarity, the test is a two-step inquiry, as it focuses on the amount of copying of the plaintiff’s protected expression and incorporates both the quantitative and qualitative aspects. It is a factual question that will judged from the lay person’s perspective, and in order to be successful, the plaintiff will have the burden to show more than a de minimis copying.

1. Defendants’ Access to Yeasayer “Sunrise”: Yeasayer claims that defendants had access to their work as shown by the widespread dissemination of “Sunrise” on CD, vinyl, and streaming platforms, as well as by the striking similarity doctrine.  The alleged similarities between the songs is discussed below. However, the Complaint provides no quantification of dissemination, sales, or streaming of Yeasayer’s “Sunrise” at the time of the alleged infringement.

2. Substantial similarity: Yeasayer, which is a rock band comprised of Chris Keating, Ira Wolf Tuton, and Anand Wilder, released and distributed their album entitled “All Hour Cymbals” back in 2007. Their album featured, which featured the song “Sunrise,” was registered with the United States Copyright Office.  According to Yeasayer’s complaint, “Sunrise” possesses a “distinctive choral performance which [Yeasayer] created and recorded using their own voices . . [which is] comprised of male voices singing in their highest registers, with animated, pulsing vibrato, and developed via distinctive audio post-processing.” “Pray For Me” allegedly incorporates the choral performance in “Sunrise” and attempts to alter it by transposing and condensing the material. The Complaint alleges: “Defendants extracted Plaintiffs’ choral performance from a recording of ‘Sunrise,’ slightly modified it, including, on information and belief, via postprocessing to alter its pitch, among other qualities, and then inserted the modified audio material into ‘Pray for Me.'”

Lamar’s “Pray For Me” is alleged to incorporate the choral performance at least eight times and is described as taking a part of “the primary feature of two complete verses, including the final verse.”

Yeasayer further alleges in its complaint that “Pray For Me” intentionally removed and/or altered the content management information (“CMI”), including metadata, and then distributed the work without their authority, in violation of the DMCA, Section 1202, which protects content management information from alteration. Yeasayer seeks an injunction, statutory damages, and attorneys’ fees and is currently represented by Doniger Burroughs, a California art, entertainment, and technology law boutique.

Songs

Sunrise by Yeasayer (2007)

Pray for Me by Weeknd and Kendrick Lamar

Documents

Complaint by Yeasayer (Feb. 24, 2020)

Attorneys

Scott Alan Burroughs and Laura Zaharia of Doniger Burroughs for Yeasayer