Blurring the lines

The piece of music commonly known as The Lion Sleeps Tonight, made famous in the animated film The Lion King, led to a bitter spat between the family of Solomon Linda, the original composer of the Zulu song, and the Walt Disney Corporation on its alleged infringement of his original work.

Vicky StilwelThe dispute was settled in 2006 with Disney agreeing to pay an undisclosed amount of money in lieu of royalties.

There have been a plethora of recent disputes on copyright between famous musicians including Madonna, Pharrell Williams, Robin Thicke, Led Zeppelin and Ed Sheeran.

The dispute involving Madonna dates back to the early 1990s and involved her smash hit Vogue. The plaintiff VMG Salsoul alleged that she had copied a 0.23 second riff from an earlier song, Love Breaks.

The case revolved primarily around the application by the US Court of Appeals of the de minimis defence — an established principle of US copyright law which states that de minimis copying does not amount to infringement of copyright — infringement only takes place where a substantial portion of the original work is copied. The court found in favour of the pop icon, stated that a general audience would not recognise the brief snippet in Vogue as originating from Love Break.

The situation was somewhat different in the case of Robin Thicke and Pharrell Williams’ smash hit Blurred Lines. The duo were taken to court by Marvin Gaye’s heirs, who claimed that Blurred Lines infringed Gaye’s 1977 hit song Got to Give It Up.

Williams and Thicke admit to being inspired by Got to Give It Up and say their song unmistakably exhibits the same “groove” as Gaye’s track. Williams is reported as saying, “I must have been channelling … that late-’70’s feeling”.

It is not copyright infringement to write a song with the same “groove” or “feel” as another. There are countless similar-sounding songs because musicians build on the past and are creating new songs with a limited musical vocabulary.

Surprisingly, a jury found in favour of Gaye’s heirs and Thicke and Williams were ordered to pay more than $7m in damages.

Recently a California jury handed down a verdict in favour of Led Zeppelin. A plaintiff filed a suit against its members, claiming that the distinctive guitar intro in their song Stairway to Heaven infringed the copyright of a not-so-famous group Spirit’s song Taurus.

The jury found that the riff that Led Zeppelin was accused of copying was not intrinsically similar to the intro of Stairway to Heaven. One of the points confirmed in this case was that, in the absence of direct evidence of copying (which is very rarely available), a case for copyright infringement can still be made out on the basis that the two works are “strikingly similar”.

In such cases, a plaintiff would have to show that the alleged infringing work is so similar to the prior work that it could not possibly have been the result of independent creation.

In a case that has yet to be decided by the courts, British singer and songwriter Ed Sheeran is being sued by two songwriters who claim that his US Top 10 hit track Photograph infringes the copyright of a song they wrote for Matt Cardle, an erstwhile winner of The X Factor UK, called Amazing.

Martin Harrington and Tom Leonard allege that Sheeran’s Photograph is “strikingly similar” to Amazing and are claiming $20m in damages and royalties. They claim that the choruses of the two songs have 39 identical notes and the songs exhibit similar overall structures, melodic rhythms and harmonies.

This week, Gaye’s heirs sued Sheeran, claiming his hit song Thinking Out Loud copies core elements of the 1973 track Let’s Get It On. The lawsuit was filed by heirs of Ed Townsend, who co-wrote the lyrics to Let’s Get It On and created its composition, according to the complaint filed in federal court in the Southern District of New York.

In assessing whether a “substantial” part of a work is copied, a qualitative rather than a quantitative approach is required, although the application of this principle in South African courts would not necessarily have resulted in the same conclusions.

Another principle reinforced by these cases, particularly in the Thicke and Williams case, is that a person cannot claim copyright in a concept. Copyright can only be claimed and enforced in the material expressions of such concepts.
Vicky Stilwell, Trade Mark Attorney and Consultant, KISCH IP

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