Music and Copyright Law

Tuesday 3rd July 2012
Article written by: Thomas Huthwaite

Jessie J is the latest musician to face allegations of copyright infringement in 2012.  The claims against the British singer relate to her hit single, Domino, which has become far more popular than the song allegedly copied from.

American singer and songwriter, Will Loomis, has accused Jessie J of infringing the copyright of certain compositional elements of his song, Bright Red Chords.  In particular, Loomis refers to the melody for the verses of each song, calling them “substantially similar”.

Loomis is now seeking upwards of US$150,000 (NZ$190,000) in damages.  The claim has been filed in a United States District Court in Newport, California.

Jessie J’s case follows several high-profile accusations in 2012, including claims against Sir Elton John, Jay-Z and Kanye West, Delta Goodrem, and the Beastie Boys.

In April, Sir Elton John was accused of copying the lyrics of a poem written by Guy Hobbs, and using those lyrics in his song, Nikita.  Hobbs claims that he wrote his poem, Natasha, in 1982, and sent the poem to Big Pig Music, Elton John’s publishing company, in 1984.

Elton John’s Nikita was then released in 1985 by labels Rocket Records (in the UK) and Geffen Records (in the US).  The lyrics of both works tell of a cold-war romance, with Natasha referring to a Russian cruise ship waitress and Nikita referring to a German bodyguard.

Hobbs claims to have noticed the similarities between Natasha and Nikita in 2001, but only filed his infringement claims on 26 April 2012.  After 26 years since the song’s release, Sir Elton John has stated that he is “surprised and disappointed” by the claims, which he believes are baseless.

In addition to the usual copyright infringement issues, the lengthy delay raises statute of limitations issues.  United States copyright law sets a maximum commencement period of 3 years for civil claims.  Hobbs may simply have waited too long to initiate his case.

In relation to the Beastie Boys, a claim was lodged on 3 May 2012 by Tuf America, a hip hop label owning the rights to Trouble Funk’s 1982 singles Drop the Bomb and Say What?  The four members of the Beastie Boys and their label, Capitol Records, were named as defendants just one day before band member Adam Yauch (alias “MCA”) died from cancer.

Tuf America is seeking punitive and exemplary damages, as well as a permanent injunction forbidding the sale of the Beastie Boys’ related albums, claiming that the defendants have all continued to profit from the unauthorised and repeated sampling of Trouble Funk’s singles.

Again, the case raises statute of limitations issues, with the relevant recordings being made over 20 years ago.  However, Tuf America claims that the Beastie Boys fraudulently concealed their use of the samples, which meant that their use was not discovered until recently.  This claim has been made despite the samples being publicly listed online for many years.[1]

The claims also relate to a different era – one in which artists, especially hip hop artists, regularly sampled from other songs without considering licensing issues.  1980s albums such as the Beastie Boy’s “Paul’s Boutique”, and Public Enemy’s “Fear of a Black Planet” are said to contain hundreds of samples, which would have been economically impossible to license for use under today’s standards.[2]

All of the above cases involve issues of whether the works in question are “substantially similar”.  In the US, it is an affirmative defence that a person has made only de minimis use, that is, use so minor that the average listener would not recognise it.  Other defences include fair use, which in the US covers a broader range of activity than under New Zealand law – although the extent to which fair use will apply depends on how much of the work has been copied, and for what purpose.

In New Zealand and Australia, copyright infringement involves an analysis of whether a “substantial part” of an original work has been copied, and whether the two works in question are “objectively similar”.  The most detailed discussion in recent years is last year’s “Kookaburra” appeal: EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty Limited [2011] FCAFC 47.

In that case, Larrikin Music Publishing, who owned the rights to Kookaburra sits in the old gum tree, successfully sued the members of Australian band Men at Work on the basis that the flute riff in their hit Down Under sounded too much like the Kookaburra song.  On appeal, the decision was upheld by the Full Court of the Federal Court of Australia.

While copyright decisions regarding music appear to be, at times, unpredictable in their result, there are a few general points to note:

  • Most music cases are settled before reaching court: for example, the Kanye West and Jay Z example referred to above, where claims brought by notorious litigant Syl Johnson were dropped after a confidential settlement was reached.[3]
  • Of those cases that do reach court, many are defended on the basis of non-infringement, despite the relative ease of alleging plagiarism: for example, Francis Day & Hunter Limited v Bron [1963] 1 Ch 587 (CA).
  • Where an artist is aware of a song, it may be easier to prove that they copied that song (whether consciously or subconsciously): see EMI Songs Australia v Larrikin Music Publishing [2011] FCAFC 47, discussed above, and Bright Tunes Music Corp v Harrisongs Music Ltd 420 F Supp 177 (SDNY 1976).

If you would like more information or help with copyright matters, please contact us.  Baldwins offers a full range of intellectual property services, including strategy advice and litigation services.

[2] There was a landmark copyright and sampling case in 1991 (Grand Upright Music Ltd v Warner Bros Records, Inc, 780 F Supp 182), where Irish-English singer and songwriter Gilbert O’Sullivan successfully sued American rapper Biz Markie for his maliciously unauthorised use of the 1972 hit single Alone Again (Naturally).  From 1991, artists were forced to be more careful in their licensing of samples.  Biz Markie’s following album was entitled “All Samples Cleared!”
[3] Johnson has previously brought claims against Cypress Hill, Jefferson Airplane, Kid Rock, and Michael Jackson.

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