What does not kill me, makes me stronger: Nietzsche, Kanye and copyright
Thursday 13th December 2012
In 2006, Vince P (Vincent Peters), who describes himself as an “up-and-coming hip-hop artist and songwriter”, wrote a song called “Stronger”. The hook of this song plays on Friedrich Nietzsche’s aphorism, “What does not kill me, makes me stronger”:
What don’t kill me make me stronger
The more I blow up the more you wronger
You copped my CD you can feel my hunger
The wait is over couldn’t wait no longer
Vince P obtained a meeting in November 2006 with John Monopoly, the manager of the superstar Kanye West. He wanted Mr Monopoly to be his executive producer. He played Mr Monopoly some of his recordings, including “Stronger”, and left him with a CD that included this track. Mr Monopoly apparently agreed to be Vince P’s producer as long as Vince P could secure record label funding. Vince P failed to get a record company deal, and the project was abandoned.
In July 2007, Kanye West released a single entitled “Stronger”, which went to #1 on several charts and quickly sold more than three million copies worldwide. The first four lines of the Kanye “Stronger” are as follows:
N-N-N-now th-th-that don’t kill me
Can only make me stronger
I need you to hurry up now
Cause I can’t wait much longer
There were several other similarities in the verses of the two songs. Notably, both songs have a line about Kate Moss. Vince P’s song begins “I ain’t from Europe but I wear Lacoste”; Kanye references Christian Dior and Louis Vuitton. It has been suggested that none of these famous names from the world of European and British fashion is commonplace in hip hop lyrics.
Vince P felt aggrieved. He registered his copyright in his “Stronger” track and sued Kanye and his record companies for copyright infringement in the United States. However, the defendants moved to have Vince P’s claim dismissed and were successful at first instance and again on appeal.
The US Court of Appeals for the Seventh Circuit considered the matter afresh. It accepted (for the purposes of the appeal) that Mr Monopoly and Kanye West “had ample access to Stronger (VP), and that this access gave West an opportunity to copy the song.” However, the Court was not persuaded that the similarities alleged by Vince P rose to the level of copyright infringement.
Judge Wood, delivering the judgment of the Court, accepted Kanye’s submission that the phrase “what does not kill me makes me stronger” had appeared in many songs over the past century; indeed, she went so far as to call the saying ubiquitous. Her Honour denied that Kanye’s song infringed Vince P’s rhyme pattern: methods of expression and lyrical forms cannot be protected by copyright; and Kanye’s rhyme scheme was not identical to Vince P’s. Finally, as regards the mention of Kate Moss, Judge Wood observed, first, that the lines were different (Vince P, “Trying to get a model chick like Kate Moss”; Kanye, “You could be my black Kate Moss tonight”); secondly, “analogizing to models as a shorthand for beauty is, for better or for worse, commonplace in our society”; and thirdly, there can be no copyright in facts or personal names.
Readers might be surprised by this result. Indeed, a US commentator notes that the Court appeared to have lost sight of the test of the “total concept and feel” of the copyright work and the allegedly infringing work.
In New Zealand, infringement consists in copying “the work as a whole or any substantial part of it”. Copyright infringement “focuses on what has been taken, the similarities. Differences are of less moment.” In a leading case about dress designs, Justice Hillyer said:
… the best test … is simply that something is a copy if it brings to mind the original. In other words, a copy is a copy if it looks like a copy, and even to my untutored eye, looking at the two dresses I would have no hesitation in holding that one was a copy of the other. The multiplication of coincidences is such that it could not be accidental.
This analysis is applicable to literary works, including lyrics, as well as to artistic works. Vince P may have fared better under New Zealand copyright law. As far as his US copyright goes, however, the judgment of the Seventh Circuit is the end of the matter: he does not appear to have appealed from it. We can assume that he is taking Nietzsche’s philosophy to heart.
Was mich nicht umbringt, macht mich stärker. Nietzsche, Götzen-Dämmerung (1889), “Sprüche und Pfeile”, 8.
 The lyrics of the two songs are reproduced in the appendix to the appeal decision: Peters v West, United States Court of Appeals, 7th Cir, No. 11-1708, 20 August 2012.
Peters v West, United States District Court for the Northern District of Illinois, Eastern Division, No 10 C 3951, 3 March 2011; affirmed Peters v West, United States Court of Appeals, 7th Cir, No. 11-1708, 20 August 2012.
 Bruce E Boyden “Seventh Circuit to Form 19: Drop Dead!” (30 August 2012) Marquette University Law School Faculty Blog < http://law.marquette.edu/facultyblog/2012/08/30/seventh-circuit-to-form-19-drop-dead/> and sources cited.
 Copyright Act 1994, section 29(2)(a) (emphasis added).
Bleiman v News Media (Auckland) Ltd  2 NZLR 673 (CA) at 679.
Thornton Hall Manufacturing Ltd v Shanton Apparel Ltd (No 2)  1 NZLR 239 (HC) at 246.