Nayvadius Wilburn, better known as the rapper “Future,” successfully defended a copyright infringement lawsuit in the U.S. District Court, Northern District of Illinois, brought by another rapper, DaQuan “Gutta” Robinson.
The song at issue in the lawsuit is Future’s “When I Think About It,” a track on the 2018 album “Beastmode 2.” Gutta wrote and recorded the song “When U Think About It” in January 2017. Gutta’s song was registered with the U.S. Copyright Office that same year. Gutta sent his song to another rapper with a contractual relationship with Future, seeking an introduction to Future. “When U Think About It” includes a chorus where each line concludes with the phrase “when you think about it.” The song includes themes of “money, guns, jewelry, and other material possessions.” Future’s song includes a chorus where each line concludes with the phrase “when I think about it.” The song includes thematic material similar to Gutta’s song.
U.S. District Court Judge Martha M. Pacold ruled that Gutta did not state a plausible copyright infringement claim related to substantial similarity. “None of the elements [Gutta] has identified in “When U Think About It” is protectable.” As to Gutta’s first allegation, that the phrase “when you think about it” or “when I think about it” is entitled to copyright protection, Judge Pacold ruled that the phrase “is a fragmentary expression that is commonplace in everyday speech and ubiquitous in popular music. . . The Seventh Circuit has held that short, commonplace phrases are not protectable elements of songs or other works.” Judge Pacold found that Gutta’s allegation that “these phrases are used in similar places and in similar ways in both songs’ choruses does not alter this conclusion.”
Further, Judge Pacold found that the songs sharing similar thematic content in their lyrics “fits squarely within the ‘scènes-à-faire’ doctrine. Where elements of a work are ‘indispensable, or at least standard, in the treatment of a given topic,’ they receive no protection.” Future pointed to other songs, such as the Wu-Tang Clan’s “C.R.E.A.M.,” The Notorious B.I.G.’s “Machine Gun Funk,” and Kanye West’s “Diamonds From Sierra Leone – Remix” to argue that the themes of gun, money, and jewelry are frequently present in rap music. Because of the commonality of these themes in hip-hop and rap, Judge Pacold found that said themes are outside the protections of copyright law.
Judge Pacold was not persuaded by Gutta’s argument that the structure of the songs established substantial similarity. “[T]hey both begin with a chorus and then alternate between the verse and the chorus. . . This is a standard structure of a piece of popular music and is not a protectable element because it is so common and thus not an original work of authorship.” Judge Pacold also did not find Gutta’s argument that the songs tell a similar story to be persuasive since “this general storyline exists in innumerable hip-hop songs. . . it is too common a narrative to be protectable.” Gutta also unsuccessfully argued that the songs used a “core lyric” in the chorus to supposed the main storyline. Judge Pacold was once again unpersuaded since “[t]his songwriting technique is not unique to [Gutta], nor mid-century Canadian-American bands that feature intricate vocal harmonies. . . it is a frequently utilized technique in popular songwriting.” Finally, Gutta argued for substantial similarity due to both songs being in the key of E, but this argument was rejected due to many courts having held that a song’s key is not a protectable element because the key does not make a song distinct.
Judge Pacold concluded by stating that “[t]heoretically, all these individually unprotected elements might, in combination, create a plausible allegation of substantial similarity.” However, because Judge Pacold viewed these elements as “small cosmetic similarities,” their combination, in totality, “does not raise a plausible inference of unlawful appropriation.” Judge Pacold granted Future’s motion to dismiss without leave to amend since “amendment would be futile because the relevant songs and their lyrics cannot change.”
Additional Reading
Rapper Future fends off copyright lawsuit over mixtape track, Reuters (August 28, 2023)
Memorandum Opinion and Order in Robinson v. Nayvadius Wilburn, LLC , et. al.
Robinson v. Nayvadius Wilburn, LLC , et. al. (Case No. 1:2021cv03585)
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