By David A. Jones
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On April 14, 2014, recording artist Sam Smith released the single, “Stay With Me.” The song became a massive success for Smith, reaching No. 1 on the UK charts and No. 2 on the U.S. Billboard Hot 100 (according to  However, it turns out that not everyone was a fan of the song.  In 2016, without the aid of a lawyer, a Colorado songwriter named Mark Halper filed a complaint against various music companies involved in publishing the song in the Middle District of Tennessee alleging that the Sam Smith song “used and replicated phraseology and significant phrase ‘stay with me’ eight (8) times,” which Halper claimed infringed upon his original, unpublished song entitled “Don’t’ Throw Our Love Away.”  The district court dismissed Halper’s case for failure to state a claim, and he appealed to the Sixth Circuit Court of Appeals. In a recent decision, the Sixth Circuit upheld the dismissal of the case. Halper v. Sony/ATV Music Publishing, LLC, et al., Case No. 18-5915 (6th Cir. Feb. 15, 2019).

The Sixth Circuit opinion notes that a properly plead claim for copyright infringement requires two elements: “(1) ownership of a valid copyright; and (2) copying by the defendant.” On appeal, neither party challenged the district court’s finding that Mr. Halper owns a valid copyright to “Don’t Throw Our Love Away.”  It is the second factor that would ultimately doom Mr. Halper’s claim to failure.

Defendants did not have access to the song

Halpert’s original complaint stated that cassette demos of his song – written in 1984 – were given to a variety of artists and producers in the music industry at various times in 1986, 1990 and 2013. However, despite this alleged wide-spread dissemination, the Court noted that Halper admitted that “Don’t Throw Our Love Away” was “never published.”

The Sixth Circuit found that Halper’s complaint did not “plead direct evidence of copying.” However, the Court noted that in such situations, an inference of copying may be established by pleading facts that show that the defendants had access to the song; and that a substantial similarity exists between the two songs at issue.  According to the Sixth Circuit, the allegations in Halper’s complaint failed to establish the requisite access.  The Court noted that although Halper alleges that he “widely disseminated” his song within the music industry at various times, he never alleges that any of the defendants were among those who received it.  As such, the allegations in the complaint could not “lead to an inference that any defendant heard, or had a reasonable opportunity to hear” Halper’s song.

No striking similarity between the songs

Without pleading evidence that the defendants copied his song and without establishing that the defendants even had access to his song, Halper’s last hope for allowing his infringement claim to proceed was if the pleadings alleged facts showing a striking similarity between the two songs. However, the totality of Halper’s allegations amounted to the fact that both songs include the phrases “stay with me,” and “lay with me.” While the Court did note that it is possible for a single line to form the basis of a copyright infringement claim, that line has to be “an integral part” or the work and “readily recognizable” (i.e. “E.T. phone home.”).  The Court found that such was not the case here, stating that “the phrases ‘stay with me’ and ‘lay with me’ are the types of words and short phrases that are common in love songs.”  Therefore, the Court held that they are not entitled to copyright protection and that with all of these factors taken together, the district court was correct to dismiss Halper’s copyright infringement claim for failure to state a claim.

While the bar to state a claim for copyright infringement is not incredibly high, one does exist. As this case illustrates, it is important to speak with an experienced attorney before moving forward with an infringement case on your own.  Doing so can help you determine the strength of your case and potentially save you a lot of unnecessary expense.