Zayn Malik ‘Better’ Infringement Suit Defendants Push for Dismissal: ‘Melodies of Three or Four Notes…Are Not Protected by Copyright’

Photo Credit: Eva Rinaldi / CC by 2.0

Last September, Zayn Malik was slapped with a copyright infringement lawsuit over “Better.” Now, the “one direction” the case should be headed is towards dismissal, according to several defendants who are attempting to have the complaint tossed.

Multiple defendants, among them Sony Music Entertainment as well as “Better” (2020) songwriters, recently submitted the motion to dismiss along with a related motion to strike certain parts of the lawsuit. The filings were shared with Digital Music News this morning and are now being entered into the case docket.

As we first reported about 100 days ago, the underlying suit, levied by a company called Formal Entertainment, accuses the mocktail maker Malik and others of borrowing components of a 2018 track entitled “Somebody Tonight” sans authorization.

In brief, Formal Entertainment’s “managing member,” Havyn (real name Patrick Simmons, of no relation to The Doobie Brothers’ Patrick Simmons) maintains that parties including 30-year-old Zayn lifted elements of “Somebody Tonight” to create “Better.”

“This action centers on the intentional and actionable copying of numerous significant compositional elements of ‘Somebody Tonight’, without which blatant copying, Zayn’s ‘Better’ would never have come to exist in its present form or become a massive worldwide success,” spells out the original filing, which the plaintiff and the associated legal team followed with an amended complaint.

Regarding how the alleged infringement came to fruition, Havyn had tapped a company called Modern Music Marketing (MMM) to promote the work, per the suit. The artist’s main contact at this marketing firm is said to have identified “Somebody Tonight” as Havyn’s “best song” and offered to promote it (without an upfront payment) in exchange for a “finder’s fee” should the work lead to a bigger agreement.

During this purported promotion process, the MMM contact forwarded “Somebody Tonight” to each “person in his contact list that works in the music industry in order to make some type of deal happen,” the suit explains. And it’s as a result of this effort that a portion of the defendants allegedly learned of and then helped themselves to parts of the relevant song.

Predictably, given the initially noted move for dismissal, the defendants don’t feel the same way, claiming in the corresponding motion that the plaintiff’s complaint fails to “even mention, let alone plausibly allege, striking similarity that can only be the result of copying.”

“First, bare references to melody and other musical terms without identifying any claimed similarities are insufficient,” the defendants’ text proceeds, emphasizing soon thereafter that chord progressions as well as “melodies of three or four notes, and perhaps up to seven notes, are not protected by copyright.”

From there, the dismissal submission describes as “a fatal flaw” the plaintiff’s “failure to allege factual content establishing that a person with” access to “Somebody Tonight” had actually helped create the appropriate Zayn Malik track.

Lastly, the defendants have also pinpointed alleged shortcomings concerning the overlap of direct and vicarious copyright claims (“a defendant allegedly liable for contributory or vicarious infringement cannot be directly liable for the same infringement”), besides adjacent alleged failures in the amended complaint.

According to a separate notice involving the motions, the defendants’ counsel is set to formally push for dismissal during a hearing on the 30th.

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