                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-1427


DEVIN COPELAND, a/k/a De Rico; MAREIO OVERTON,

                Plaintiffs - Appellants,

           v.

JUSTIN BIEBER; USHER RAYMOND, IV, a/k/a Usher; HEATHER
BRIGHT, individually, and d/b/a B−Rhaka Publishing; RAY
ROMULUS, a/k/a Rayro, individually and d/b/a Please Enjoy
the Music; JONATHAN YIP, individually and d/b/a Products of
the Street; JEREMY REEVES, individually and d/b/a Sumphu;
UNIVERSAL MUSIC CORPORATION; UNIVERSAL MUSIC PUBLISHING
GROUP;   SONY/ATV   MUSIC   PUBLISHING,   LLC;   WB   MUSIC
CORPORATION; THE ISLAND DEF JAM MUSIC GROUP; STAGE THREE
MUSIC (U.S.) INC.; STAGE THREE MUSIC, LLC; JONETTA PATTON,
d/b/a J Pat Management,

                Defendants - Appellees.


Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.      Arenda L. Wright Allen,
District Judge. (2:13-cv-00246-AWA-TEM)


Argued:   March 24, 2015                   Decided:   June 18, 2015


Before WYNN, FLOYD, and HARRIS, Circuit Judges.


Vacated and remanded by published opinion.    Judge Harris wrote
the opinion, in which Judge Wynn and Judge Floyd joined.


ARGUED:    Duncan Glover Byers, BYERS LAW GROUP, Norfolk,
Virginia, for Appellants.     Stephen Edward Noona, KAUFMAN &
CANOLES, P.C., Norfolk, Virginia; Jonathan David Davis, JONATHAN
D. DAVIS, P.C., New York, New York, for Appellees.   ON BRIEF:
Howard Weitzman, Jeremiah T. Reynolds, KINSELLA WEITZMAN ISER
KUMP & ALDISERT, Santa Monica, California, for Justin Bieber.
Nathan Muyskens, Washington, D.C., Barry I. Slotnick, Cheng L.
Chen, LOEB & LOEB LLP, New York, New York, for Heather Bright,
d/b/a B-Rhaka Publishing, WB Music Corporation, and Sony/ATV
Music Publishing, LLC.




                              2
PAMELA HARRIS, Circuit Judge:

      Musician      Devin     Copeland    (“Copeland”),         together        with    his

songwriting      partner,      appeals    the    dismissal      of     his      copyright

infringement claim against recording artists Justin Bieber and

Usher Raymond IV.       Copeland alleges that three recorded songs by

the defendants, each titled “Somebody to Love,” infringe upon

his copyright over his own, earlier song of the same name.                              The

district court granted the defendants’ motions to dismiss on the

ground that no reasonable jury could find Copeland’s song and

the   defendants’      songs    sufficiently          similar     to   give      rise   to

liability for infringement.              We disagree, and therefore vacate

the   district      court’s    order     and    remand    the     case    for     further

proceedings.



                                          I.

                                          A.

      Because Copeland appeals from an order granting a motion to

dismiss   under      Rule     12(b)(6)    of    the     Federal    Rules        of   Civil

Procedure,     we    recount      the    facts     as     alleged        by     Copeland,

accepting them as true for purposes of this appeal.                           See Jackson

v. Lightsey, 775 F.3d 170, 173 (4th Cir. 2014).

      Copeland is a Virginia-based R&B singer and songwriter who

performs under the name “De Rico.”                 In 2008, together with his

songwriting partner Mareio Overton, Copeland began writing and

                                          3
recording songs to perform on his upcoming album, My Story II.

Among them was “Somebody to Love,” the song that is the subject

matter of this case (the “Copeland song”).                  Copeland registered

a copyright for the My Story II songs, including “Somebody to

Love,” later that year.

     In     late    2009,   Copeland     entered     into       discussions       with

Sangreel Media (“Sangreel”), a company that recruits artists for

record    labels    including   Island      Records,     Sony    Music,    and     RCA

Records.     Sangreel was interested in promoting Copeland’s music,

and Copeland turned over copies of My Story II so that Sangreel

could provide       promotional   copies      to   its   clients.         Among    the

figures to whom Sangreel presented Copeland’s music was Usher

Raymond IV, a world-famous recording artist who performs under

the name “Usher.”

     According       to   Copeland’s   complaint,        Usher    liked    what    he

heard.     Usher’s mother and manager, Jonetta Patton (“Patton”),

scheduled    a     conference   call   with    Copeland,     during    which       she

informed Copeland that both she and Usher had listened to My

Story II, and that they were interested in having Copeland re-

record the album and join Usher on tour.                  Yet the plans never

materialized, and that was the last Copeland heard from anyone

in Usher’s camp.

     Within a few months of Copeland’s phone conversation with

Patton, however, Usher had recorded and posted on his YouTube

                                        4
channel a demo song also titled “Somebody to Love” (the “Usher

demo song”).       Usher did not commercially release this song, but

instead allegedly brought it to his protégé and fellow recording

artist,    Justin      Bieber       (“Bieber”).           Bieber   recorded       his    own

“Somebody to Love” (the “Bieber album song”) and released it on

his debut album, My World 2.0, in the spring of 2010.                            Bieber’s

“Somebody to Love” was a hit, peaking at number 15 on the U.S.

Billboard Hot 100 chart.              Finally, Bieber released a fourth and

final    “Somebody     to     Love,”    a    remix       with   lead    vocals    by    both

himself and Usher (the “Bieber-Usher remix song”) in June 2010.

Bieber has continued to perform live versions of those songs

while on tour.

                                             B.

        Alleging that Bieber and Usher had access to the Copeland

song     via    Sangreel      and     that       their     songs   bear     a    striking

resemblance to his own work, Copeland filed suit for copyright

infringement       against      Bieber,          Usher,     and    other        associated

defendants (collectively, “Bieber and Usher”).                          Bieber and Usher

moved to dismiss the action under Rule 12(b)(6), contending, as

relevant       here,   that    no    reasonable      jury       could    find    that    the

Copeland song and the Bieber and Usher songs were “substantially

similar,” as required to make out an infringement claim.

        After a hearing, the district court agreed with Bieber and

Usher, and entered an order granting their motions to dismiss.

                                             5
The court applied our precedent requiring copyright plaintiffs

to     prove     two   distinct       forms     of     similarity:       “extrinsic”

similarity, an objective match between the copyright-protectable

elements of an original work and a purported copy, often based

on     expert     testimony;    and       “intrinsic”         similarity,   a   more

subjective and “essentially aesthetic judgment” as to whether

the    intended    audience    of   two    works      would    experience   them   as

similar in overall effect.            While acknowledging that substantial

similarity is “largely a matter of fact,” J.A. 249, the district

court understood our precedent to allow for dismissal on the

pleadings under either prong where no reasonable jury could find

substantial similarity of the requisite kind.

       The court began its analysis with intrinsic similarity, and

the overall appeal of the two works to their intended audience.

Relying again on Fourth Circuit precedent, the court held that

the relevant “intended audience” in this case is the general

public, as the expected ultimate market for Copeland’s song.

And the general public, the court concluded, would not “construe

the aesthetic appeal of the songs as being similar,” for despite

some shared elements, the “mood, tone, and subject matter” of

the songs differ “significantly.”               J.A. 253-54.          Having decided

that    no     reasonable   jury    could      find    the    songs    substantially

similar under the intrinsic prong, the district court granted



                                           6
defendants’          motions    to     dismiss     without   reaching      extrinsic

similarity.       This appeal followed.



                                            II.

        To establish a claim for copyright infringement under the

Copyright Act of 1976, 17 U.S.C. § 101 et seq., a plaintiff must

prove that it possesses a valid copyright and that the defendant

copied        elements     of        its    work    that     are    original      and

protectable.          See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,

499 U.S. 340, 361 (1991); Universal Furniture Int’l, Inc., v.

Collezione Europa USA, Inc., 618 F.3d 417, 435 (4th Cir. 2010).

Absent direct proof of copying, which is hard to come by, a

plaintiff may prove copying indirectly, with evidence showing

that the defendant had access to the copyrighted work and that

the     purported        copy     is       “substantially     similar”      to    the

original.       See Universal Furniture, 618 F.3d at 435.                 It is that

final step in the analysis that is at issue here.                         Bieber and

Usher    do    not    challenge      Copeland’s    copyright   in   his    song   nor

their access to that song.                 Instead, this case turns on whether

Copeland can show the “substantial similarity” that would give

rise, together with undisputed access, to a presumption that

Bieber and Usher copied his song.

      We begin by laying out the standard under which we consider

that question, and addressing Copeland’s arguments for changes

                                             7
or     refinements        to    that       standard.             As    the   district       court

correctly explained, in this circuit, a plaintiff’s substantial

similarity showing has two components: extrinsic and intrinsic

similarity.             And while both bear, obviously, on the likeness

between       a    copyrighted       work     and      a     supposed        copy,   they    are

different in important ways.

       The “extrinsic inquiry is an objective one,” looking to

specific          and    “external      criteria”           of    substantial        similarity

between the original elements (and only the original elements)

of     a    protected       work     and    an       alleged      copy.        Id.    at    435-

36; see also Dawson v. Hinshaw Music, Inc., 905 F.2d 731, 732-33

(4th       Cir.    1990).      Because       the      inquiry         is   objective,      expert

testimony often will be relevant.                      Universal Furniture, 618 F.3d

at 435.       And because it is focused only on the original elements

of the copyrighted work, a court examining extrinsic similarity

must       first    engage     in   a   process        we    sometimes        call   “analytic

dissection,” separating out those parts of the work that are

original and protected from those that are not.                                  See id. at

436-37.

       Intrinsic similarity, by contrast, is a subjective inquiry

that centers on the impressions of a work’s “intended audience,”

usually the general public.                   See Lyons P’ship, L.P. v. Morris

Costumes, 243 F.3d 789, 801 (4th Cir. 2001).                                   So under the

intrinsic prong, we analyze works as cohesive wholes, without

                                                 8
distinguishing between protected and unprotected elements, just

as the works’ intended audiences likely would encounter them in

the marketplace.        See Universal Furniture, 618 F.3d at 437.                 We

often   have    described     intrinsic        similarity    as    measuring    the

“total concept and feel” of the works in question.                          Id. at

436; Lyons, 243 F.3d at 801.

       Copeland asks us to modify this approach in two respects.

First, pointing to Ninth Circuit case law, see Apple Computer,

Inc. v. Microsoft Corp., 35 F.3d 1435, 1442-43 (9th Cir. 1994),

Copeland suggests that we revisit our precedent and insist that

comparison under the intrinsic prong, as well as the extrinsic,

be   confined    to    original    elements       and    preceded    by   analytic

dissection.     We can put to one side whether the Ninth Circuit

actually has adopted the rule that Copeland endorses, because

our court has held just the opposite:                   In Universal Furniture,

we joined the Second and Eighth Circuits in finding expressly

that    analytic      dissection      is   inapplicable      to    the    intrinsic

analysis,   because      a   work’s    intended    audience       “does   not   make

th[e]    distinction”        between       protectable      and     unprotectable

elements and instead encounters a work “as one object.”                         618

F.3d at 437.

       Even if we were free to reconsider that holding, Copeland

has offered no compelling reason to do so.                   Indeed, as Bieber

and Usher point out, our rule, allowing for comparison of entire

                                           9
works      under    the    intrinsic       prong,    generally    advantages      rather

than       disadvantages       copyright       plaintiffs       like     Copeland,    by

broadening the grounds upon which a court may find intrinsic

similarity.         The district court committed no error by declining

to engage in analytic dissection before conducting its inquiry

into intrinsic similarity.

       Second, Copeland urges us to adopt the rule from Shaw v.

Lindheim, 919 F.2d 1353 (9th Cir. 1990), under which intrinsic

similarity is a question reserved for the trier of fact, and

only the extrinsic similarity prong can be grounds for dismissal

at   the     summary       judgment    and    pleading      stages.       Because    the

intrinsic similarity inquiry turns on an inherently subjective

appreciation of a work’s tone and feel, Copeland argues, it is

unfair      to    resolve    it   as   a    matter    of   law,   with    one    judge’s

personal         opinion    trumping    what      could    be   overwhelming      expert

evidence showing the substantial similarity of two songs under

the extrinsic prong.

       We have not squarely addressed whether a district court may

grant an infringement defendant’s motion to dismiss, or motion

for summary judgment, under the intrinsic prong alone. 1                        Nor have


       1
       By contrast, we have indicated that a district court may
grant a motion to dismiss or summary judgment under the
extrinsic prong alone. See Universal Furniture, 618 F.3d at 436
(“A court may grant summary judgment for defendant as a matter
of law if the similarity between the two works concerns only


                                             10
we analyzed the precise scope of the Shaw rule in the Ninth

Circuit, or decided whether to adopt it in our own.                We need not

resolve those issues today, however, because in our view, even

assuming that a motion to dismiss may be granted on the ground

that no reasonable jury could find intrinsic similarity, the

district court erred in doing so here.                It is to that question

that we now turn.



                                     III.

       This court reviews de novo a district court’s decision to

grant a motion to dismiss under Rule 12(b)(6), see Jackson, 775

F.3d   at   177–78,    and   also   conducts     de   novo   the   analysis   of

whether works are substantially similar, see Peters v. West, 692

F.3d 629, 632 (7th Cir. 2012).           Like the district court, we may

examine all four of the songs at issue at the pleading stage,

because all were “integral to and explicitly relied on in the

complaint”    and     because   Bieber     and   Usher   “do   not   challenge

[their] authenticity.”          Phillips v. LCI Int’l, Inc., 190 F.3d

609, 618 (4th Cir. 1999).

                                      A.




noncopyrightable elements of the plaintiff’s work.” (quoting
Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1257 (11th Cir.
1999))); see also Lyons, 243 F.3d at 803 (court decides as a
“matter of law” whether extrinsic similarity exists).


                                      11
        As noted above, intrinsic similarity is assessed from the

perspective        of    a    work’s       intended           audience.        See       Universal

Furniture, 618 F.3d at 435.                      That means that the first step in

undertaking an analysis of intrinsic similarity is identifying

the   right    audience.             The    district          court    concluded         that    the

general public was the intended audience for the Copeland song,

and we agree.

        In Dawson, we clarified our intrinsic similarity analysis

by introducing the “intended audience” formulation.                                   Because a

primary purpose of copyright law is to “protect[] a creator’s

market,” we reasoned, the intrinsic similarity inquiry should be

keyed     to   the      impressions          of        the    intended       audience      for     a

creator’s      work     —    the    impressions          that       count   for     purposes      of

marketability.          905 F.2d at 734.                     So where the market for a

given work consists of a discrete and specialized class, the

reactions      of       a    generic         ordinary           observer       will       not    be

particularly        relevant.              See    id.          But    in     most     cases,      we

cautioned, the general public is in fact the intended audience,

and “a court should be hesitant” to find otherwise.                                        Id. at

737; see Lyons, 243 F.3d at 801.

        Copeland      argues       that    this        case    is    the    exception      to    the

ordinary rule.          According to Copeland, the intended audience for

his song was not the general public but instead the “industry

professionals”          to    whom    he     distributed             his    song    by    way    of

                                                  12
Sangreel.     The “market” Copeland was trying to reach, in other

words, was the Ushers of the world, and Copeland would be harmed

if industry professionals believed his song was substantially

similar to those of the defendants even if the general public

saw no resemblance.

      Like the district court, we are unpersuaded.                     It may be

that Copeland intended to promote his music directly to industry

professionals.         But “[i]f . . .        industry professionals reject

[Copeland’s] song because it is too similar to the [d]efendants’

songs, it would be because those companies fear that the public

will find the songs to be overly similar.”                 J.A. 252 (emphasis

in original).          There is a reason that the Dawson formulation

uses the word “audience,” rather than “buyer” or “recipient”:

Ultimate     marketability        is    not    always     determined     by    the

impressions       of   a   first-hand   purchaser    or   recipient,     but   may

sometimes rest on the impressions of third parties — the work’s

actual “audience” — whose preferences the buyer or recipient has

in mind when acquiring the work.

      Our decision in Lyons illustrates the point.                     There, we

considered whether the intended audience for a purple dinosaur

costume resembling the character “Barney” from the television

series Barney & Friends was the adult performers who would buy

the costumes or the young children they sought to entertain.

243   F.3d   at    802.      We   concluded   that   it   was   the    children’s

                                        13
reactions     that    mattered        to    the       intrinsic       similarity      inquiry,

because   even       though     they       were       not     themselves       the    intended

purchasers     of     the     costumes,          it     was     their       impressions        (or

misimpressions) that could lead adults to buy the infringing

costumes.      Id.      at   802–03.         Adults         might     discern     differences

between the two costumes, but if children could not, then there

would be no reason for adults to insist on the original — with

the result that the “knock-off” costumes would cut into Barney’s

market and the profits of Barney’s owner.                         Id. at 803.        The same

reasoning applies here.               Though industry professionals may have

been the intended direct recipients of Copeland’s music, the

impressions that matter are those of the general public that

constitutes the market for popular music — because, as Copeland

admits,   J.A.       252,     those    are        the       impressions       that    industry

professionals        would    have     in    mind       in     choosing       whether     to    do

business with Copeland.

       Again, this should come as no surprise.                          When we left open

in   Dawson   the     possibility          that       the     intended      audience      for    a

choral arrangement of a spiritual song was more specialized than

the general public and might be limited to choral directors, we

also   made    clear     that     we       were       crafting      a    narrow      rule      for

exceptional    circumstances.               We    specifically          distinguished          the

subject matter        there    from        popular      music,        for   which    we     noted

approvingly      that       courts    “routinely”             apply     the    lay    observer

                                             14
test.     Dawson, 905 F.2d at 737.                 That is because the intended

audience for popular music is usually an ordinary listener or,

put differently, the general public.                          And indeed, the entire

premise of Copeland’s case is that his song is substantially

similar to one that appears on a multi-platinum album by one of

the world’s most recognizable popular music stars.                          This is not

a case about niche audience appeal, and there is no reason to

think    of   the   “intended       audience”          as   anything    other    than   the

general public.

                                             B.

     Finally, we come to the question at the heart of this case:

Whether the songs at issue, assessed from the perspective of the

intended audience — here, the general public — and taking into

account their “total concept and feel,” Lyons, 243 F.3d at 801,

are sufficiently intrinsically similar to give rise to a valid

infringement        claim.          The    district         court     answered    in    the

negative,       holding      that    no     reasonable         jury    could     find   the

requisite intrinsic similarity.                    But under the applicable de

novo standard of review, see Peters, 692 F.3d at 632, we must

listen    for    ourselves      and       come    to    our    own    conclusion.       And

because the general public typically encounters popular music

songs by hearing them from start to finish, we undertake that

analysis by listening to the songs in their entirety and side by



                                             15
side, to determine whether a reasonable jury could find that

they are subjectively similar.

                                                 1.

      As a preliminary matter, we should clarify that the “songs”

to which we refer include all three of the defendants’ versions

of “Somebody to Love”: the Usher demo version, the Bieber album

version, and the Bieber-Usher remix version.                           At oral argument,

Copeland suggested that each of those songs must be considered

individually, and separately compared to the Copeland song.                                  We

disagree.        In     our    view,        the       defendants’      three       songs     are

sufficiently     similar       to     each       other    that      they    may    be   grouped

together, and the same intrinsic analysis applied to all.                                     If

any   one   of   them    fails        to    meet       the    threshold      for     intrinsic

similarity, then all of them do.

      The Bieber album song and the Bieber-Usher remix are to our

ears identical; the only difference we can hear is that Bieber

is the only singer featured on the album song, whereas Usher

provides    lead      vocals    in    the    second          verse   and     backing     vocals

elsewhere on the remix.               On the Usher demo song, Usher is the

only singer featured, and that song is in a different key than

the others, presumably to accommodate his different vocal range.

But   the   Usher     demo     song    is    otherwise         in    lock-step       with    the

others down to minor details — everything from the lead singer’s

exclamation      of     “oh”     in        the        introductory         section      to   the

                                                 16
distinctive synthesizer chords in the verses and the bass line

in the pre-chorus. 2      By the unscientific intrinsic standard, the

three Bieber and Usher songs are not just substantially similar

to one another; they are the same.

                                        2.

      We turn now to a comparison of the Copeland song with,

collectively, the three Bieber and Usher songs.                  The district

court acknowledged that the Usher and Bieber songs “have some

elements in common” with the Copeland song.            J.A. 253.      But for

the   district   court,    what   was    dispositive   was   a    significant

difference in the overall “aesthetic appeal” of the respective

songs.    J.A. 254.    We cannot agree.      In our view, that analysis

attaches too much weight to what the district court termed a

difference in “mood” and “tone,” and too little to similarities

between the “element” of the songs — their choruses — that is

most important.

      First, if by “mood” and “tone” the district court meant

genre, then we agree with this much:           The Copeland song belongs

to a different genre than the three Bieber and Usher songs.

      2
        More specifically, the synthesizer chords in the three
songs share    a   distinctive  “gated”  effect:     Instead  of
maintaining a steady tone, the chords sharply fade in and out in
a stabbing, off-beat fashion. And in all three songs, the pre-
chorus and chorus bass line follows an “octave” pattern,
repeating the same note (e.g., a C or a B-flat) but jumping up
and down a full scale, which lends a forward-moving, propulsive
effect to the music.

                                        17
Though all fall under the same broad umbrella of popular music,

the Copeland song is squarely within the R&B subgenre, while the

Bieber and Usher songs would be labeled dance pop, perhaps with

hints of electronica.        Indeed, that difference is striking upon

first listen, and at least as a linguistic matter, the very fact

of these different genres might be thought to make the songs

different in “concept and feel,” Lyons, 243 F.3d at 801, or, in

the words of the district court, in “aesthetic appeal,” J.A.

254.

       But as Bieber’s counsel conceded at oral argument, while

genre may be relevant to intrinsic analysis of musical works, it

cannot be dispositive under copyright law.             For if a difference

in genre were enough by itself to preclude intrinsic similarity,

then nothing would prevent someone from translating, say, the

Beatles’ songbook into a different genre, and then profiting

from an unlicensed reggae or heavy metal version of “Hey Jude”

on the ground that it is different in “concept and feel” than

the original.    From Copeland’s perspective, it may be true that

the “aesthetic appeal” of an R&B song is different, in some

sense, than that of a dance pop song — but if there is going to

be a dance pop version of his R&B “Somebody to Love,” then it is

his to record or to license, so that he can reap the full return

on his creative efforts.       Cf. Castle Rock Entm’t, Inc. v. Carol

Pub.   Grp.,   Inc.,   150   F.3d   132,   140   (2d   Cir.   1998)   (“total

                                     18
concept and feel” analysis must take account of fact that works

from different genres “must necessarily have a different concept

and feel”).        And by the same token, of course, were we to put

too much stock in identity of genre at the intrinsic stage, we

would risk deeming each successive work in a genre — whether it

be R&B, ragtime, or bossa nova — an appropriation of the same-

genre works that came before it.

      Second, we do not doubt that the songs at issue here are in

many respects dissimilar.          And if substantial similarity were a

purely quantitative inquiry, asking only whether the majority of

the   works   in    question     overlapped,    we     would   agree   with    the

district court that no reasonable jury could find the requisite

intrinsic similarity.            For instance, while the Copeland song

concludes with a repeated instrumental figure, the Bieber and

Usher songs end more abruptly, after ad-libbed vocal lines.                    The

Bieber and Usher songs include a post-chorus interval, with the

lyric “I-I need somebody” sung in a syncopated manner, that has

no    equivalent     in    the    Copeland     song.       And    perhaps     most

significantly,       the    songs’    verses     feature       different    vocal

melodies and beats 3 as well as different lyrical content, with


      3
       The Copeland verses feature a hectic R&B beat, with a
shaker and a busy eighth-note pattern on the bass drum.     The
musical accompaniment in those verses is two chords played in a
backbeat, with a whimsical sound reminiscent of a circus organ.
Both differ significantly from the sparser beats and regimented


                                       19
the Copeland verses lamenting the end of a relationship gone

sour and the Bieber and Usher verses conveying the hope and

optimism of the start of a relationship with an unidentified

love interest.        The district court may have had some or all of

these in mind when it referred to differences in “mood, tone,

and    subject    matter,”     J.A.     253,      and     we        agree    that   taken

numerically, the points of dissimilarity may well exceed the

points of similarity.

       But what that analysis fails to account for, we think, is

the relative importance of these differences as compared to what

the songs reasonably could be heard to have in common: their

choruses.     Even when quantitative majorities of two works bear

little    resemblance,       courts     routinely         permit       a     finding   of

substantial      similarity    where    the      works    share       some    especially

significant sequence of notes or lyrics.                   See Swirsky v. Carey,

376 F.3d 841, 851 (9th Cir. 2004) (overlap in first measure of

chorus    —   seven    total    notes       —    enough        to     make    pop    songs

substantially similar); Fisher v. Dees, 794 F.2d 432, 434 & n.2

(9th   Cir.   1986)    (similarity     in       first    six    measures      of    songs,

amounting to twenty-nine seconds on a forty-minute album, enough

to constitute appropriation of album); Elsmere Music, Inc. v.




three-chord progression of the verses in the Bieber and Usher
songs.


                                        20
Nat’l Broad. Co., 482 F. Supp. 741, 744 (S.D.N.Y.), aff’d, 623

F.2d 252 (2d Cir. 1980) (four-note phrase accompanying lyrics “I

love   New   York”    protectable      because        it   is   “the   heart    of   the

composition”); Santrayll v. Burrell, No. 91 Civ. 3166, 1996 WL

134803,   at   *1–2    (S.D.N.Y.      Mar.      25,   1996)     (repetition     of   the

phrase    “uh-oh”     four    times    in    a   distinctive       rhythm      for   one

measure is protectable).            And we think it is clear that when it

comes to popular music, a song’s chorus may be the kind of key

sequence that can give rise to intrinsic similarity, even when

works differ in other respects.

       It is the chorus — often termed the “hook,” in recognition

of its power to keep a listener coming back for more — that many

listeners will recognize immediately or hear in their minds when

a song title is mentioned.             As the part of a song that is most

often repeated and remembered, a chorus hook is important not

only   aesthetically         but    also    commercially,        where   it    may   be

central to a song’s economic success.                  See, e.g., Gary Burns, A

Typology of ‘Hooks’ in Popular Records, 6 Popular Music 1 (1987)

(cataloging characteristics and definitions of term “hook,” and

noting that “the hook is ‘what you’re selling’” and that hooks

are “the foundation of commercial songwriting, particularly hit-

single writing”).        From “Respect” by Aretha Franklin to “Seven

Nation Army” by the White Stripes, the choruses or hooks of

popular   music     songs     are   often    disproportionately          significant,

                                           21
relative    to     the    amount        of   time     or    number     of    measures      they

occupy.     See id. at 1 (“[V]irtually no hit record is without a

bit of music or words so compelling that it worms its way into

one’s memory and won’t go away.”).

       After listening to the Copeland song and the Bieber and

Usher    songs     as    wholes,        we   conclude        that    their     choruses     are

similar enough and also significant enough that a reasonable

jury    could     find    the        songs   intrinsically          similar.        The    most

obvious    similarity,          of     course,       is    the     shared    chorus      lyric,

mirrored in the songs’ titles:                       “I [] need somebody to love.”

As Bieber and Usher point out, this phrase is common in popular

music, appearing most famously in songs also titled “Somebody to

Love” by psychedelic-rock band Jefferson Airplane and arena-rock

band     Queen,    and        common     lyrical          phrases    generally      are     not

copyrightable, see Peters, 692 F.3d at 635–36 (discussing rap

songs’    use     of    the     maxim     “what      does     not    kill    me,    makes   me

stronger”).             That     might         preclude       consideration         of     this

similarity under the extrinsic prong, where analysis is preceded

by analytic dissection to determine which portions of a work are

protectable.            But     as     Bieber    and       Usher     concede,      under    the

intrinsic       prong,     we     do     not    engage       in     analytic    dissection.

Instead,    we     examine        the     chorus’s         lyrics     together      with    the

accompanying music, taking the works in their entirety, as an

ordinary musical listener would.

                                                22
     And when we listen to the choruses that way, and in the

context of the entire songs, we hear the kind of meaningful

overlap   on    which   a   reasonable   jury    could    rest     a   finding   of

substantial similarity.           It is not simply that both choruses

contain the lyric “somebody to love”; it is that the lyric is

delivered in what seems to be an almost identical rhythm and a

strikingly similar melody.         To us, it sounds as though there are

a couple of points in the respective chorus melodies where the

Bieber and Usher songs go up a note and the Copeland song goes

down a note, or vice versa.          In our view, however, a reasonable

jury could find that these small variations would not prevent a

member    of     the    general     public      from     hearing       substantial

similarity. 4

     We also conclude that the choruses of the Copeland song and

the Bieber and Usher songs are sufficiently important to the

songs’ overall effect that they may be the basis for a finding


     4
       In this respect, comparison with the Jefferson Airplane
and Queen songs cited by Bieber and Usher undermines rather than
supports their position.   To the lay listeners of this panel,
the Copeland and Bieber and Usher choruses are much more similar
to each other in “total concept and feel” than they are to the
refrains of those classic rock‘nʹroll songs.      Because courts
have often taken judicial notice of such well-known songs, see,
e.g., ZZ Top v. Chrysler Corp., 54 F. Supp. 2d 983, 986 n.6
(W.D. Wash. 1999); Testa v. Janssen, 482 F. Supp. 1195, 1199 n.3
(W.D. Pa. 1980), we may consider them for purposes of this
comparison, though we emphasize that our holding today rests on
our analysis of the Copeland song and the Bieber and Usher songs
alone.


                                      23
of intrinsic similarity.               In both the Copeland song and the

Bieber and Usher songs, the singing of the titular lyric is an

anthemic,    sing-along       moment,        delivered      at     a    high    volume   and

pitch.         Quite         simply,         it     is      “the        heart     of     the

composition[s],” Elsmere Music, 482 F. Supp. at 744, the most

prominent and memorable part of the songs, and just the sort of

significant sequence that courts have found sufficient to render

musical works substantially similar.                       Whether a member of the

general public could experience these songs primarily through

their    choruses      and     thus     find        them    substantially         similar,

notwithstanding the differences catalogued above, is in our view

a close enough question that it cannot be disposed of as a

matter of law and should instead be decided by a jury.



                                             IV.

      In summary, we hold that a reasonable jury could find that

the     Copeland    song      and      the        Bieber    and        Usher    songs    are

intrinsically similar.              Because our holding is sufficient to

dispose of this appeal, we decline to reach Copeland’s other

arguments.     For     the     reasons       set    forth    above,       we    vacate   the

judgment of the district court and remand the case for further

proceedings.



                                                                  VACATED AND REMANDED

                                             24
