By Jonathan Stempel
(Reuters) - A U.S. federal judge has recommended that a $10 million lawsuit accusing Justin Bieber and Usher of illegally copying parts of their song "Somebody to Love" from two Virginia songwriters should be dismissed.
In a report on Monday, Magistrate Judge Douglas Miller said Devin Copeland and his cousin Mareio Overton failed to show that Bieber and Usher had access to their 2008 song, also titled "Somebody to Love," before creating their work in early 2010.
The lawsuit was originally dismissed in March 2014, but a federal appeals court, in a rare reversal in such cases, revived the case in June 2015, saying a reasonable jury could find the songs' choruses "intrinsically similar."
Bieber and Usher, whose full name is Usher Raymond, said their song was based on a November 2009 version by songwriter Heather Bright and a production trio, The Stereotypes.
The plaintiffs countered that music industry executives had made their song available to the singers sooner.
But in his 32-page recommendation, Miller found a lack of evidence that the defendants had heard Copeland's and Overton's music before Bright and The Stereotypes created their song.
The Norfolk, Virginia-based judge also cited testimony from a New York University musicology professor that the songs were not "strikingly similar," despite some commonality in their hooks.
In addition, Miller called the title itself "generic," with more than 100 artists including Jefferson Airplane and Queen having already recorded songs titled "Somebody to Love."
The recommendation will go to U.S. District Judge Arenda Wright Allen, who entered the March 2014 dismissal, and will decide whether to again dismiss the case.
Duncan Byers, a lawyer for the plaintiffs, would have no comment until Allen ruled, his office said on Tuesday.
Lawyers for Bieber and Usher did not immediately respond to requests for comment.
Among the other defendants were publishers such as Vivendi SA's Universal Music Publishing Group and Sony Corp's Sony/ATV Music Publishing.
A version of "Somebody to Love" recorded by Bieber, and credited to him as a co-writer, peaked at No. 15 on the Billboard Hot 100 in 2010.
The case is Copeland et al v. Bieber et al, U.S. District Court, Eastern District of Virginia, No, 13-00246.
(Reporting by Jonathan Stempel in New York; Editing by Alan Crosby)