Guitarist Paul Rose, 51, filed his copyright lawsuit in the Southern District of New York in Feb. 2017, claiming that U2’s “The Fly” stole “an elaborate and distinctive guitar solo nearly identical” to the start of his 1989 instrumental “Nae Slappin.”
But U.S. District Judge Denise Cote concluded Tuesday that Rose has “not plausibly pled that the defendants’ work contains a literal or nearly literal copy of the identified portion of the plaintiff’s work.”
Cote determined in her 23-page opinion that the looped audio clips Rose included in his amended complaint “are sufficient to demonstrate that a reasonable juror could not conclude that the two portions of the works are sufficiently close.”
According to Cote, Rose relied on the doctrine of fragmented literal similarity, which says a fragmented piece can infringe on copyright even if the complete piece differs from the original.
But Cote didn’t buy it.
“While both begin with one note held for a few beats, followed by playing three shorter notes down the octave, any possible similarity ends there,” the judge deduced after comparing the two songs.
In addition to accusing U2 of ripping off his guitar solo, Rose’s copyright file also claimed the percussion in the U2 song “accentuates the same points in the bass line” as his own work.
In his opposition brief, Rose asserted that the U2 song had “the same attitude, attack, style and overall approach.”
Cote also remained unconvinced by Rose’s claim that U2’s use of a tambourine as percussion qualified as infringement.
“Although a tambourine is used in both fragments, it is not used in the same way,” she pointed out. “The tambourine in ‘Nae Slappin’ is hit along with the snare; the tambourine in ‘The Fly’ is shaken.”
Rose sought at least $5 million in damages.
A 1992 Rolling Stone review of the Daniel Lanois-produced “Achtung Baby” record noted that The Edge’s textured and heavily-effected guitar playing on “The Fly” featured “grinding riffs that bounce off Adam Clayton’s thick bass line and echo and embellish Larry Mullen Jr.’s drumming.”
Rose recently finished a residency at the Bitter End nightclub in Greenwich Village – New York City’s oldest rock club – where he played in a trio backed by musicians from jazz fusion groups Spyro Gyra and the Pat Metheny Group.
Last Sunday, U2 performed at the 60th Grammy Awards in New York City.
Reps for both U2 and Paul Rose did not immediately respond to requests for comment.
In 2016, rock legends Led Zeppelin prevailed in a similar California copyright suit that claimed it had lifted the opening riff in “Stairway to Heaven” from the finger-picked acoustic theme from “Taurus” by the 60s Los Angeles rock band Spirit.
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