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Substantial Similarity

This guide illustrates the "substantial similarity" doctrine from U.S. copyright law, using a set of case summaries.

Vincent Peters v. Kanye West, et al., 692 F.3d 629 (7th Cir. 2012).

Facts

Plaintiff, Vince P, wrote, recorded, and distributed a song entitled “Stronger,” based in part on Nietzsche’s famous aphorism, “What does not kill me, makes me stronger.” The following year, Kanye West released a song also entitled “Stronger,” which became a huge hit and eventually earned him a Grammy. Vince P argued that West’s song was substantially similar to his, because both songs repeated Nietzsche’s maxim, both used similar rhyme patterns, and both contained references to a British model, Kate Moss. Vince P sured West and others for copyright infringement. The district court found no substantial similarity between the songs and granted West’s motion to dismiss.

Court's Analysis

The Seventh Circuit affirmed the district court’s decision.

The Seventh Circuit looked at the tests for deciding copyright infringement in other circuits and concluded that although the tests differed in their nomenclature, they all led to the same outcome. The court decided that the proper test could be simplified to a two-part test. First, the court asked whether “the defendant had an actual opportunity to copy the original,” and second, whether “the two works share enough unique features to give rise to a breach of the duty not to copy another's work.”

The court refused to allow strong evidence showing opportunity to copy to influence its decision on whether or not the works were substantially similar. Although the Seventh Circuit had applied something like the inverse ratio rule in prior cases and allowed plaintiffs to demonstrate strong evidence of similarity in order to alleviate the burden of proof for showing opportunity to copy, the court had never allowed the reverse. Even though Vince P was able to assert in his complaint that West had the opportunity to access his song, that had no bearing on the issue of substantial similarity.

Applying the second part of the test, the court looked at the songs’ lyrics and decided that the use of Nietzsche’s phrase in songs was so common that West’s use of it did not constitute infringement. Additionally, even though both parties used three consecutive rhyming lines in their songs, the court concluded that such a rhyming scheme is only a “method,” and “copyright [does not protect] methods of expression.” Finally, even though the songs both referred to Kate Moss, the court pointed out that the lines referring to her in each song were “entirely different” and that “analogizing to models as a shorthand for beauty is, for better or for worse, commonplace in our society.” Even taking these three elements together, the court found no substantial similarity between the works.

Works at Issue

Stronger by Vince P.

Lyrics from Seventh Circuit opinion:

Chorus (2x)
What don’t kill me make me stronger
The more I blow up the more you wronger
You copped my CD you can feel my hunger
The wait is over couldn’t wait no longer

Verse 1:
I came from the bottom of the bottom
To make it to the bottom
Snuck in the back door now I got
A&R’s back then should have signed
Said I wasn’t gangsta said I couldn’t rhyme
Vince P why don’t you stick to making beats
You know what how bout I rap on my beats
Make my own tracks stack my own stacks
I’m hot you a loser and that’s a fact
I’m bout to take you back when emcees was real
Didn’t care where you from or if you had a deal
Fist fights no guns no body packing steel
Family reunions food on the grill
This ain’t my barbeque but can I get a plate
I’m still real hungry and I just ate
This ain’t my barbeque but can I get a plate
I’m still real hungry and I just ate 

Chorus (2x) [as before]

Verse 2:
I ain’t from Europe but I wear Lacoste
And every day I hustle like Rick Ross
Trying to get a model chick like Kate Moss
Then trade her to another team like Randy Moss
I’m the chosen one cause I got the force
And I’m the unsigned hype but I’m not in the source
All these dudes in Chicago tried to diss me
Cause on the low they girls they kiss me
And when I’m on the road you know they miss me
Check out my MySpace check the Bentley
I’m moving on up like George and Weezy
And money on my mind like Little Weezy
I’m the brand new kick pusher music distributor
And make crazy rhymes like I’m related to Luda
You can find me at the Croc Lounge
Or at the Funky Buddha
Catch a plane from O’Hare straight to Burmuda
Check my lex diamonds call me Lex Luther
Don’t like guns but my beats are ruggas
Can’t you feel how these horns going right through you
Can’t you feel how these horns going right through you
I’m Vince P and I’m going to the top And I won’t stop till I get to the top 
You know my rhymes is hot and you know my beats is hot
You know Vince P is going going to the top

Chorus (2x) [as before] 

Stronger by Kanye West

Lyrics from Seventh Circuit opinion

Chorus:
N-N-N-now th-th-that don’t kill me
Can only make me stronger
I need you to hurry up now
Cause I can’t wait much longer
I know I got to be right now
Cause I can’t get much wronger
Man, I’ve been waitin’ all night now
That’s how long I’ve been on ya

Verse 1:
I need you right now
I need you right now
Let’s get lost tonight
You could be my black Kate Moss tonight
Play secretary I’m the boss tonight
And you don’t give a f*** what they all say right?
Awesome, the Christian in Christian Dior
Damn they don’t make ‘em like this anymore
I ask, cause I’m not sure
Do anybody make real sh*t anymore?
Bow in the presence of greatness
Cause right now thou has forsaken us
You should be honored by my lateness
That I would even show up to this fake sh*t
So go ahead go nuts go ape sh*t
Especially in my Pastelle or my Bape sh*t 
Act like you can’t tell who make this
New gospel homey take six, and take this, haters

Chorus [as before]

Verse 2:
I need you right now
I need you right now
me likey
I don’t know if you got a man or not,
If you made plans or not
If God put me in your plans or not
I’m trippin’ this drink got me sayin’ a lot
But I know that God put you in front of me
So how the h*ll could you front on me
There’s a thousand you’s there’s only one of me
I’m trippin’, I’m caught up in the moment right?
This is Louis Vuitton Don night
So we gon’ do everything that Kan like
Heard they’d do anything for a Klondike
Well I’d do anything for a blonde d*ke
And she’ll do anything for the limelight
And we’ll do anything when the time’s right
ugh, baby you’re makin’ it (harder, better, faster, stronger)

Chorus [as before]

Verse 3:
I need you right now
I need you right now 
You know how long I’ve been on ya?
Since Prince was on Apollonia
Since O.J. had Isotoners
Don’t act like I never told ya (x6)
Baby you’re making it (harder, better, faster, stronger)

Chorus [as before]