A federal court in Los Angeles, California ruled that the song “Boom Boom Pow,” by the pop music group the Black-Eyed Peas, did not infringe the copyright in the song “Boom Dynamite,” which was written earlier by songwriter Ebony Latrice Batts a/k/a Phoenix Phenom. Batts v. Adams, 2:10-cv-08123-JFW-RZ (C.D. Cal. Oct. 21, 2011).
The court explained that “[b]ecause direct evidence of copying is rarely available, and copying can therefore be difficult to prove, a plaintiff ‘may establish copying by showing (1) circumstantial evidence of access to the protected work and (2) substantial similarity of ideas and expression between the copyrighted work and the allegedly infringing work.” For this purpose, “[s]ubstantial similarity refers to similarity of expression, not merely similarity of ideas or concepts.” To determine whether two works are substantially similar, the U.S. Court of Appeals for the Ninth Circuit employs a two-part analysis – an extrinsic and an intrinsic test. “The ‘extrinsic test’ is an objective comparison of specific expressive elements” which “‘focuses on articulable similarities’” between the two works. “The intrinsic test is a subjective test that focuses on whether the ordinary, reasonable audience would recognize the [Defendants’] work as a dramatization or picturization of the [P]laintiff’s work.”
In the Ninth Circuit, courts place the initial burden on the plaintiff to identify the sources of the alleged similarity between the two works. If the plaintiff meets this first burden, the court must the court must determine whether any of the allegedly similar features are protected by copyright. When analyzing the similarity of musical compositions under the extrinsic test, a variety of compositional elements may be considered, including melody, harmony, rhythm, timbre, structure, instrumentation, meter, tempo, and lyrics. However, in comparing these elements, the Court must first filter out any “unprotectable elements”—such as ideas rather than the expression of ideas, and expressions which have essentially merged with the idea they express.
The court analyzed the allegedly similar elements in the two songs—including (among others) repeated uses in both songs of the phrase “I got that” and the word “boom,” and use of the phrase “let the beat rock” in one song, compared with “make the beat go” in the other. The court concluded that,
[W]hile “Boom Boom Pow” and “Boom Dynamite” contain similarities, those similarities encompass elements that are not protectable and Plaintiffs have failed to demonstrate that the selection, coordination, and arrangement of those nonprotectable elements created an original, protectable expression that was then copied by the Adams Defendants.