SW Legal studies in Business

Song Infringement Must Show “Substantial Similarity” for Claim to Proceed

District court held that a claim of copyright infringement must proceed under federal Copyright Law, not state consumer protection law, and that the holder of a copyrighted song must demonstrate that the claimed infringing song is “substantially similar” to the protected work.

Topic Intellectual Property
Key Words

Copyright; Infringement; Song; “Substantially Similar”

C A S E   S U M M A R Y

Steele is a songwriter who asserted that he wrote a “love anthem” about the Boston Red Sox, “Man I Really Love This Team,” in 2004. The song became popular in Boston that year as the Red Sox went to the World Series. Steele registered the song in 2006 with the American Society of Composers, Authors and Publishers (ASCAP) and received federal copyright. He claimed he wrote a derivative version of the song, “Man I Really Love This Town,” which could be used for marketing by inserting the name of other teams and cities. Steele sued Turner Broadcasting System (TBS) and Bon Jovi for copyright infringement by playing a Bon Jovi song, “I Love This Town” during baseball advertisements. Steele contended that the Bon Jovi song was derived from his derivative version of his original song and violated the Lanham Act. He also claimed violation of the Massachusetts Consumer Protection Act. Defendants moved to dismiss the complaint.


Motion granted. The Massachusetts Consumer Protection Act was preempted by the Copyright Act. Steele’s claim for infringement must proceed under that. To succeed on a claim of copyright infringement, a plaintiff must prove (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. That is, Steele must show that the copyrighted song that he owns and the claimed infringing work are “substantially similar.” This can be shown only if an ordinary person of reasonable attentiveness would, upon listening to both songs, conclude that the defendant unlawfully appropriated the plaintiff’s protected expression. Steele has failed to provide evidence that there was substantial similarity, so that issue cannot be resolved.

Citation Steele v. Turner Broadcasting System, 607 F.Supp.2d 258 (D. Mass., 2009)

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