A New York judge has tossed out a lawsuit against U2 and Universal Music Group, alleging the band copied parts of a relatively unknown song to create a guitar solo on their 1991 Achtung Baby single “The Fly.”
The suit was brought by English musician Paul Rose last year, claiming copyright infringement on his 1989 experimental instrumental song “Nae Slappin” after he sent a demo tape to UMG’s Island Records. He alleged infringing similarities between a 13-second segment of “Nae Slappin” and a 12-second segment of “The Fly,” specifically noting the guitar line, the use of tambourine and the drum, percussion and bass lines. As well, he also claimed similarities in a later chord change from E7 to A7 and the “dimension of sound” in the two works.
Regarding each of these alleged similarities, U.S. District Judge Denise Cote broke down reasoning one-by-one for why “The Fly” was not an infringing work, spending the most time on the guitar lines.
In her dismissal ruling Cote wrote that the 13-second segment of “Nae Slappin” is not “quantitatively significant” to the song, amounting to only 6 percent of the track, which the Rose described as “an extended improvisation of then-novel industrial rock” and includes a variety of experimental instrument sounds. And even though Rose argued that the segment was an “important foundation” to the structure and sound of the track, she said he failed to effectively prove as much.
“The fragment appears only once near the beginning of the recording; it is not repeated,” she wrote. “It is one of multiple, at times seemingly random, guitar lines and styles strung together over the course of the composition.”
She went on to state that even if the two fragments show similarities in their sound and style of playing, there are substantial differences in the musical elements. “The Fly,” she wrote, does not “recreate the notes, sounds, or rhythm of the plaintiff’s work in a way that would permit a finding that the copying was sufficiently close to find infringement under the fragmented literal similarity doctrine.”
As for the other alleged similarities, Cote found that none of them were subject to subject to copyright protection on their own, calling the claims “too vague to describe protectable expression.”