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Appeals court upholds earlier ruling in You Raise Me Up case

By Andy Malt | Published on Tuesday 30 November 2021

The Ninth Circuit appeals court in the US has agreed with a lower court decision that the song ‘You Raise Me Up’ did not steal from an earlier work called ‘Söknuður’.

A panel of three judges agreed that “‘Söknuður’ and ‘You Raise Me Up’ are not substantially similar and most of their similarities are attributable to prior art”. That prior art includes the Irish folk song ‘Londonderry Air’ – best known for being incorporated into ‘Danny Boy’ – both of which are very much in the public domain.

The Norwegian songwriter behind ‘You Raise Me Up’ – Rolf Løvland – was accused of ripping off 1977 song ‘Söknuður’, written by Icelandic singer-songwriter Johann Helgason. When the lawsuit was filed in 2018, it was reported that Helgason and Icelandic collecting society STEF had analysed the two works and concluded they were “97% alike”.

Hegason then hired musicologist Judith Finell who is perhaps best known for her testimony on behalf of the Marvin Gaye estate in the big ‘Blurred Lines’ trial, where a jury concluded that Robin Thicke and Pharrell Williams had infringed Gaye’s ‘Got To Give It Up’ when writing their hit.

However, the original judge overseeing this lawsuit wasn’t especially impressed with Finell’s reports that set out why ‘You Raise Me Up’ is so similar to ‘Söknuður’. The judge wrote that “the Finell reports fail to describe reliable principles and methodology, fail to apply such principles and methodology to the facts, and fail to properly apply the extrinsic test, rendering the reports unreliable, unhelpful, and inadmissible”.

The judge then agreed with the defence, that – when similarities between both songs and ‘Londonderry Air’ were removed – then there wasn’t much similarity left at all. And that is now also the conclusion of the appeals court.

‘You Raise Me Up’, of course, has been a big hit worldwide over the years, thanks to a series of high profile covers. Originally recorded by 1995 Eurovision winners Secret Garden – of which Rolf Løvland is a member – in 2002, it was then covered by Josh Groban the following year and Westlife in 2005. Various other artists have also released versions of the song, although none have been bigger hits than those two.

A lawyer representing Helgason and his Johannsongs company, Michael Machat, tells Law360 that the latest ruling may not signal the end of the dispute. He says that they are currently “contemplating” filing a request for a judicial review of the case.