Alisa Apps v. Universal Music Group, Inc.; Island Records; John Newman; Steve Booker

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALISA APPS,
Plaintiff-Appellant,
v.
UNIVERSAL MUSIC GROUP, INC.;
ISLAND RECORDS; JOHN NEWMAN;
STEVE BOOKER,
Defendants-Appellees.
No. 17-17122
D.C. No.
2:16-cv-01132-JAD-NJK
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Argued and Submitted February 12, 2019
San Francisco, California
Before: SCHROEDER, O’SCANNLAIN, and RAWLINSON, Circuit Judges.
Singer-songwriter Alisa Apps appeals the district court’s grant of summary
judgment in favor of Universal Music Group, Inc. (“UMGI”) and songwriters John
Newman and Steve Booker in Apps’s action for copyright infringement.
FILED
MAR 14 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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Apps provided no direct evidence of copying, so she was required to show
both that the claimed infringing work and her work are “substantially similar” and
that the alleged infringers had “access” to her work. See Loomis v. Cornish, 836
F.3d 991, 994 (9th Cir. 2016) (citations and quotations omitted).
Apps failed to show substantial similarity. The only lyrical commonality
between both songs is the phrase “I need to know now.” “Words and short
phrases” are not copyrightable, 37 C.F.R. § 202.1(a), nor are “[o]rdinary phrases.”
Narell v. Freeman, 872 F.2d 907, 911 (9th Cir. 1989). Moreover, these lyrics are
not original to Apps. UMGI showed that at least 11 songs pre-dating Apps’s song
included this common phrase.
Apps also argues that the sound of defendant’s recording of “Love me
Again” is similar to the sound of her copyrighted recording of her composition.
Yet she does not, and could not, argue that there was any copying of her recording
itself; she argues only that there is similarity. That is insufficient under the terms
of the statute. The exclusive copyright in a sound recording does not extend to a
recording of other sounds, “even though such sounds imitate or simulate those in
the copyrighted sound recording.” 17 U.S.C. § 114(b). We have held that even
mimicking copyrighted recording is not infringement absent actual copying. See
VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 882-84 (9th Cir. 2016).
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To the extent that Apps continues to argue infringement of the musical
composition of her song, she failed to produce sufficient evidence of objective
similarities between the compositions of the songs to allow such a claim to proceed
to trial. See Funky Films, Inc. v. Time Warner Entm’t Co., 462 F.3d 1072, 1077
(9th Cir. 2006) (“A plaintiff who cannot satisfy the [objective] test necessarily
loses on summary judgment, because a jury may not find substantial similarity
without evidence on both the [objective] and [subjective] tests.” (quotations
omitted)).
Because Apps cannot show substantial similarity, we need not decide
whether she could establish access, whether UMGI is an improper defendant, or
whether Apps should have been granted leave to name a different defendant.
AFFIRMED.
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