The U.S. Court of Appeals for the First Circuit affirmed the dismissal of three suits against rock star Jon Bon Jovi and other defendants that claimed that Jon Bon Jovi’s song “I Love This Town,” which was used in baseball game commercials, infringed upon plaintiff Samuel Bartley Steele’s work. Steele v. Ricigliano et al., Case No. 1-1675; Steele et al. v. Bongiovi et al., Case No. 11-1674; Steele et al. v. Vector Management et al., Case No. 10-2173; and Steele et al. v. Turner Broadcasting System Inc. et al., Case No. 09-2571 (1st Cir., Feb. 10, 2012).

Steele, a singer and songwriter, wrote a song about the Boston Red Sox called “Man I Really Love this Team.” In October, 2008, Steele filed a copyright-infringement suit in Boston, asserting that his song “Man I Love This Town” was infringed by a commercial for Major League Baseball. The allegedly offending commercial used Bon Jovi’s “I Love This Town” as a soundtrack. Steele claimed $400 billion in damages.

To succeed on a claim for copyright infringement, a plaintiff must prove ownership of a valid copyright and copying of constituent elements of the work that are original. As part of the second prong of the test, a plaintiff must prove that the copyrighted and alleged infringing works are substantially similar. A defendant’s work is substantially similar to the copyrighted work only if “an ordinary person of reasonable attentiveness would, upon listening to both, conclude that the defendant unlawfully appropriated the plaintiff’s protectable expression.” Moreover, the substantial similarity between the works must also relate to the original elements of the copyrighted work and, therefore, a court must separate the copyrighted work’s original, protected expressive elements from those aspects that are not copyrightable.

The district court held that “considered as a whole, differences between the two songs (as recognized by plaintiff’s own musicologist) overwhelmingly eclipse any similarity in structure and rhyme scheme” and that “no reasonable jury could conclude that the Bon Jovi song is substantially similar to the original lyrical elements of the Steele song.” The district court therefore granted the defendants’ motions for summary judgment.

The 1st Circuit affirmed the district court’s grant of summary judgment for the defendants, holding that “after our own independent review of the record and the briefs of the parties we conclude that ... no reasonable juror could find either substantial similarity of expression sufficient to support an infringement claim or probative similarity of expression sufficient to support an inference of actual copying, even taking the evidence in the light most favorable to plaintiff.” The 1st Circuit further held that “to the extent that there are similarities between the works at issue, many of them relate to stock scènes à faire naturally stemming form both works’ subject matter, which are not subject to copyright protection. […] The remaining similarities are not substantial, and the differences between the works are fundamental and extensive.”