You may be familiar with the Kanye West on the dance floor, or maybe in the gossip columns, but more recently Mr West has been involved in a different type of spectacle closer to Boston Law than the MTV Awards Show : court room drama.
In Vincent Peters v Kanye West, Roc-A-Fella Records, LLC and UMG Recordings, INC Mr West’s hit song “Stronger” was subject to a claim of copyright infringement. The plaintiff Vincent Peters or “Vince P” as he was known professionally disputed that Mr West had infringed the copyright of his own song also called “Stronger.” Vince P was a songwriter performer, who solicited some interest from Interscope records. As a result of this interest Vince P went out seeking an executive producer getting in contact with John Murphy. Mr Murphy happened to be the executive producer of Kanye West. Vince P alleged that he sent various CDs, which contained his song “Stronger”, and based on this access, on top of the public access to his song available on his MySpace page, alleged that Mr West had copied part’s of his song in writing his own song Stronger. (The facts are disputed between the parties).
Vince P claim had failed at District Court level, and has then became subjected to motion to dismiss at the Court of Appeal. The Honourable Judge Virgina Kendall stated that to succeed in his claim Vince P had to prove that he had:
(1) Ownership of a valid copyright; and
(2) unauthorised copying of constituent elements of the work that are original had ocurred.
In the aspect of originality, Vince P’s claim failed miserably. The concept of originality is a fundamental platform of copyright law. The concept contains two components whether the copyright work was independently produced, and whether the work was born as a result of some degree of labour, skill or judgement. The former component is often described in terms of the ‘sweat of the brow’ metaphor, where an author only needs to input a reasonable amount of labour and skill, rather than any creative innovation to gain copyright protection.
The plaintiff admitted that individually, each constituent element he argued was unoriginal, but that when combined the elements were substantially similar to Kanye West’s song. These constituent elements we are follows:
1. Song Title “Stronger”
2. Reference to “Kate Moss”
3. Selected Lyrics in the “Hook”
Individually the court confirmed that each alone, lacked “a minimum level of creativity and do not qualify for copyright protection.” Citing well settled authority it held that song titles by themselves does not earn copyright protection.
Each song had took the “creative choice of referring to Kate Moss” in their lyrics. Vince P’s song included the line “Trying to get a model chick like Kate Moss”, while Kanye’s name drop was “You could be my black Kate Moss.” The Court quickly declared such creative use of name did not gain any copyright protection, with the Honourable ….taking this point to the extreme in musing that “[i]ndeed, the name Kate Moss would not even be copyrightable by Ms Moss herself.”
The third constituent claim was the most arguable claim, however it also failed. The similar lyrics were as follows:
Vince P Stronger (2006)
What don’t kill me make me stronger
The more I blow up the more you wronger
You coped my CD you can feel my hunger
The wait is over couldn’t wait no longerKanye West Stronger (2007)
N- n- now 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
I know I got to be right now cause I can’t get much wronger
Man I’ve been waitin’ all night now that’s how long I’ve been on you
One of the main defects of the claim was the fact that both use the 120 year old proverb “what don’t kill me make me stronger” which was no longer under copyright, and subject to the public domain. Moreover the Court, or maybe its officers, seemed to have extensively hip musical tastes to bring up the fact that “variations of this clichéd phrase” had been used by other artists such as Jay Z, 2Pac, Maxim and Megadeath.
The Court strongly rejected the argument raised by the plaintiff, that these unoriginal elements when combined could form the basis of an infringement claim: “Simply put, a plaintiff cannot select a few non-copyrightable elements contained in his song, claim a monopoly of their use, and prevent others from employing similar un-protectable individual words and phrases in their works.” The lack of any musical similarities, made any comparison of substantial similarity of a copyright infringement claim was not necessary (although the courts discussed this issue regarless and found no substantial similarity.)
This case not only provides an entertaining avenue for Honourable Judges to judicially refer to Jay Z, 2Pac and Heezy, but highlights some interesting copyright points. Ignoring any potential value in terms precedent or doctrine (US Copyright Cases are typically not as influential as those from Commonwealth jurisdictions), Vincent does provides three interesting observations.
The discussion of the fundamental platform of originality and the examples given of song titles/names/vague choruses containing common phrases illustrate the important role this concept has. The concept is often provides a way of separating the purpose of copyright law, with other intellectual property law. For example the name Kate Moss is may be able to be trademarked, however it does not gain protection in copyright which illustrates the often overlooked distinct purposes of these two intellectual property regimes: copyright is intended to encourage creativity/authorship rather than protect goodwill and economic interests, the realm of trade marks.
Another interesting observation is how something such as an 800 year old phrase, available in the public domain for use, can inspire such creativity. With copyright cases typically containing possessive language of authorship/ownership in terms of protection, it is often easy to ignore the creativity that existing works, available in the public domain inspire. As easily as one can claim that one artist was “stealing” from another by copying parts of their works, so where both the plaintiff and defendant borrowed from this well-known saying. It illustrates the value of the cultural public domain, which supplies valuable works and more importantly associations on which others can build vastly different creative works.
If also demonstrates that copyright infringement cases are seldom straightforward. Although at first glance, there seems to be cosmetic similarities between the two songs, once analysed legally the plaintiffs case was exposed as lacking any real merit. In the modern era of presumed guilt under Copyright Legislation such as s92A, this raises some real concerns about the effectiveness and fairness of presumed guilt, where the copying which was occurred is simply literal reproduction or “file sharing””. It’s a point that has often been lost in the s92A debate – but I guess “You Can’t Tell Them Nothing”
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