Peabody & Company, LLC v. Wayne

District court grants motion to dismiss copyright infringement claim alleging rapper Roddy Ricch’s Grammy-nominated song “The Box” infringed 1970s R&B song, holding no reasonable jury could find protectable elements of two songs substantially similar. 

Plaintiff Peabody & Company, LLC owns the musical composition for “Come On Down,” an R&B song recorded by Greg Perry and released in 1975. In December 2019, Atlantic Records released “The Box,” which was performed by rapper Roddy Ricch. “The Box” spent 11 weeks at No. 1 on the U.S. Billboard Hot 100, received three Grammy nominations, and has been streamed millions of times on Spotify, YouTube and TikTok. Alleging that the songs were substantially similar, plaintiff filed a copyright infringement lawsuit against Ricch, whose real name is Roderick Wayne, and others involved in the writing, production and distribution of “The Box.” The court granted defendants’ motion to dismiss, finding no substantial similarity and that the musical elements plaintiff relied on were not protectable.

The court first applied the ordinary observer test to determine substantial similarity, which requires the court to examine the works’ “total concept and feel” and analyze whether an average lay observer listening to the songs would regard the aesthetic appeal as the same. The court found that no reasonable jury could find that the works are substantially similar. “Come On Down” is a soul song that contains a melodic tune, while “The Box” is a hip-hop song delivered in a monotone rap. The court also noted that the “feel” of the songs differs—“Come On Down” is a sentimental song about love and heartbreak, while “The Box” is a braggadocious song about amassing wealth, sleeping with multiple women and being more skilled than other rappers. The tempo of “Come On Down” is also faster, and the song utilized acoustic instruments that contrasted with the synthesized sounds in “The Box.”

The court moved on to the fragmented literal similarity test, which applies when a plaintiff alleges that a defendant copied a protectable portion of plaintiff’s work “exactly or nearly exactly.” Plaintiff argued that “Come On Down” contains a “distinct musical arrangement” that “defines the introduction of the song” and is repeated throughout the song. Specifically, plaintiff alleged that this arrangement comprises six musical elements that defendants copied: (1) an instrumental melody that consists of an ascending scale played as a glissando; (2) a two-chord progression; (3) the repetition of the chord progression; (4) an instrumental group of a violin, synthesizer keyboard, electric bass and drum set; (5) the order in which the musical elements appear; and (6) the tone setting on the instruments. The court disagreed. 

As a preliminary matter, the court found that none of these individual elements are protectable, noting that glissandos are “ubiquitous in popular music” and “belong in the public domain.” The two-chord progression and chord repetition are also too commonplace to be protectable, given the “limited number of notes and chords available to composers.” Further, plaintiff’s choice of instruments was not so original as to warrant copyright protection.

As to the fifth element, the court disagreed that plaintiff could own the idea of an instrumental introduction and found that, in any event, plaintiff’s order of musical elements did not have a “distinctive characteristic.” As to tone, the court recognized that tone is an element of the sound recording (which plaintiff did not claim to own) rather than the musical composition.

Plaintiff also argued that even if the individual elements are not protectable, the combination of those elements is. The court disagreed, noting that plaintiff did not identify a combination of a sufficient number of unprotectable elements to satisfy the strict numerosity requirement. 

Even if the combination of elements was protectable, the court found that plaintiff failed to show that “The Box” copied important features of any protected expression. As to the rising scales, the court noted that they were expressed differently. Crucially, the scale in “Come On Down” ends with a “rapid, alternating bowing technique known as a tremolando,” which is absent from “The Box.” As to chord progressions, the progression in “The Box” consists of three chords, while the progression in “Come On Down” has two. The court also recognized that the chord progressions repeat at different rates. Lastly, the order of the musical elements differed. In “The Box,” the vocals appear before the drums. In contrast, in “Come On Down,” the drums appear before the vocals. 

Summary prepared by Tal Dickstein and Alex Loh