Johannsongs-Publishing Ltd. v. Lovland

Johannsongs-Publishing Ltd. (JP) (plaintiff) owned the copyright to the musical composition for the 1977 song “Soknudur.” JP filed a copyright-infringement action alleging that the song “You Raise Me Up” (“Raise”), written by Rolf Lovland and Brendan Graham (collectively, Lovland) (defendants) was substantially similar to “Soknudur” musically. Lovland challenged and moved for summary judgment, arguing that “Raise” did not copy any protected, original elements from “Soknudur.” Lovland submitted an expert report from musicologist Lawrence Ferrara. The Ferrara report (1) analyzed the musical elements of both “Soknudur” and “Raise” both individually and in combination; (2) analyzed the similarities both “Soknudur” and “Raise” shared with prior art, especially public-domain works and traditional folksongs; and then (3) analyzed the musical similarities that existed between “Soknudur” and “Raise” after filtering out the unprotectable elements derived from prior art. Ferrara concluded that “Raise” did not infringe on the copyright of “Soknudur” because any significant musical similarities between “Soknudur” and “Raise” derived from prior art, meaning that the similarities were grounded in unprotectable elements. Ferrara further concluded that any similarities between “Raise” and “Soknudur” that were not derived from prior art were fragmented, isolated, and insignificant. To counter the Ferrara report, JP submitted its own expert report from Judith Finell. The Finell report found that “Soknudur” and “Raise” were substantially similar, but Finell’s similarity analysis was significantly less comprehensive and failed to filter out unprotectable elements derived from prior art.