Usher is on the verge of facing a song theft dispute over allegations of stealing material for his Hot 100 No. 1, “Burn,” from a songwriter named Ernest Lee Straughter.
Last month, a California federal judge found there to be sufficient possibility that Usher and co-defendants who produced the song had access to Slaughter’s work, “Reasons,” created in 1998. The judge accepted a musicologist’s report that noted substantial similarity between the songs and denied a motion to dismiss the case on summary judgment. That means a jury might have the rare opportunity to listen to two songs and determine if the Usher song was stolen.
But before that happens, Usher’s camp is pleading with the judge to re-examine whether there was any chance he was familiar with Straughter’s work.
Attorneys for the defendants, including Usher, producer Jermaine Dupri, EMI April Music, Sony Music, Arista Records, and others filed a motion on Friday that asks U.S. District Court Judge Christina Snyder to reconsider her August order denying summary judgment.
In the case, Straugther alleges he created a song entitled “The Reasons Why,” which showed up on an album by the R&B group Reel Tight under the name “No More Pain” in late 1998.
To make the claims stick, Straughter needs to show two big elements — that the defendants had access to his work and there was substantial similarity in the songs.
An expert for the plaintiffs submitted a report that the two songs shared measurable similarities, including a “highly unusual” 18-bar introduction, musical instruments that enter at the exact same bars, similar guitar and vocal stylings, the pitches and phrasings of certain melodies, and other compositional congruity.
Leaving aside the issue of whether these songs sound alike, the big controversy at the moment in the lawsuit is whether Usher and Dupri had access to Straughter’s song. Straughter offered several theories, some more convincing than others.
In her decision, Judge Snyder didn’t buy the one about Usher and members of Reel Tight having much personal contact with each other. But she did rule it to be an issue of material fact whether a third-party intermediary, Warren G, may have provided the link, having had mutual collaboration with both parties. Further, the judge did her own independent research and found Reel Tight’s album to have reached No. 197 for a single week in 1999 on the R&B/Hip Hop Albums chart. As such, the judge says the song may have been heard by Usher because it was available through “wide dissemination.”
In papers to the court on Friday, Usher’s camp attacks these theories. Usher says there was no attempt by the court to show access by anybody who had responsibility over “Burn,” as Warren G played no role in the song’s creation.
As for “wide dissemination,” the defendants attempt to school the judge on the fact that an album isn’t a song. The plaintiff’s song, it’s pointed out, was a “random and unproven song buried on an album.” Further, they show the song got played on the radio around the nation just three times, twice in Chattanooga, Tennessee and once in Denver.
“The fact that the song had virtually no radio airplay forecloses any inference that it was widely disseminated, let alone remotely popular,” say the defendants to the judge.
Judge Snyder now gets to decide whether to take these arguments and backtrack. Otherwise, this will be the rare song theft case that goes before a jury.