In almost every copyright infringement case, the plaintiff attempts to show that the defendants song is substantially similar to the plaintiffs. However, in this case Blind Melon is in the interesting position of arguing that their hit “No Rain” is different enough from Mandy Jiroux’s “Insane” so that “Insane” would be considered a derivative work and not a cover subject to compulsory licensing.
What?!
Here, the defendant’s don’t dispute copying as they allege they had a license to use “No Rain.” Blind Melon on the other hand alleges that no license was ever granted. If “Insane” is deemed to be a cover, then the defendant’s didn’t need a license from Blind Melon to record the song. However, if it’s considered a derivative work, then a license was required. Copyright infringement would result if a license was required, but not obtained.
So, perhaps for the first time ever, songwriters are arguing that an allegedly infringing song is substantially different - not substantially similar.
For more information, see http://www.hollywoodreporter.com/thr-esq/blind-melon-sues-insane-songwriters-923580.