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| Kanye feels Stronger after the ruling |
A few months ago this Blog
reported news of a copyright infringement claim brought against Kanye and Jay-Z by soul veteran Syl Johnson over 1967 song Different
Strokes, which ended up with a settlement between the parties (see here and here).
Now Kanye is back on the
copyright scene, with a fresh judgment of the US Court of
Appeals for the 7th Circuit (a summary is also available here), which ruled in his favour
in an action for copyright infringement brought by music producer Vincent
Peters (professionally known as Vince P).
Background
In 2006, Vince P wrote, recorded, and
distributed a song entitled Stronger. The song’s title comes from a key line in its hook (refrain or
chorus).
As recalled by Justice Wood, who delivered the Opinion of the Court, the line draws from Friedrich
Nietzsche’s quote from his 1889 Twilightof the Idols: “What does not kill me, makes me stronger.”
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| German philosopher Nietzsche |
As
it often happens in these cases, shortly thereafter (in 2007), Kanye West
released a song entitled ... Stronger. This, besides sampling from electronic duo Daft
Punk's Harder Better Faster, features a hook that repeats Nietzsche's quote and,
according to Vince P, other suspicious similarities. West's song was very
successful: it earned the No 1 spot in several Billboard charts, the single
sold over three million copies, and it eventually earned West a Grammy for Best
Rap Solo Performance.
Following
unsuccessful attempts to contact West, Vince P thought of first registering his
own version of Stronger with the US
Copyright Office [as recalled by the Court, copyright registration, while not
jurisdictional, is a substantive requirement of infringement litigation] and
then filed a lawsuit against West.
Both
the District Court and the Court of Appeal dismissed Vince P's claim, holding
that the two songs were not similar enough to support a valid claim of
copyright infringement.
The findings of the Court
As recalled by Justice Wood,
proving infringement of a copyright owner’s exclusive right under 17 USC §106(1) (the
reproduction right) requires evidence of
(1) ownership of a valid copyright, and
(2) copying of constituent elements of the work that
are original.
Vince
P succeeded in providing prima facie evidence of his ownership in the
whole of the lyrics to his song. Thus, the Court turned its attention to the
question of copying.
"The standard for copying is surprisingly
muddled", pointed out the Court. Where direct
evidence - such as an admission of copying - is not available, a plaintiff may
prove copying by showing that:
(a)
the defendant had the opportunity to copy the original (often called “access”)
and
(b)
the two works are “substantially similar” [and similarities concern protectable elements].
Because of Monopoly, West had
an opportunity to copy Vince P's song. Therefore, the question was whether he
actually did that and, if so, to what extent.
Substantial similarity
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| What "substantial similarity" is about? (photo by Diane Arbus) |
Three features of Kanye West's Stronger formed the
basis of Vince P’s argument that West’s song infringed his:
(i) First, he noted that the hooks of both songs
derive from the same common maxim and that they implement similar rhyme schemes
(stronger, wronger, etc).
(ii) Second, he pointed to the songs’ shared title,
which again derives from Nietzsche.
(iii) Finally, he noted that both songs contain
“incongruous” references to the UK model Kate Moss, who is not usually featured
in rap or hip-hop lyrics.
(i) and (ii): Nietzsche’s quote,
rhyme schemes and title
Despite the fact that both
songs quote from a 19th century German philosopher might, at first blush,
seem to be an unusual coincidence, West correctly noted that the
aphorism has been repeatedly invoked in song lyrics over the past century
(if you don't believe it, watch this YouTube video here). Therefore, neither the
Nietzsche's quote nor the title (which was also used by Britney Spears) led to a finding of infringement.
As to Vince P's claim
that West’s song infringes on the rhyme pattern he used in the hook, the
Court recalled that copyright protects actual expression, not methods
of expression. Therefore Vince P could not claim copyright over a
tercet.
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| Reference to Kate Moss as paragon of female beauty is a trite one, held the Court |
Coming
to the songs’ references to Kate Moss, in Vince P’s song, the line is “Trying
to get a model chick like Kate Moss”; in West’s it is “You could be my
black Kate Moss tonight.”
Vince
P argued that his lyrical reference to Kate Moss “as a paragon of female beauty” is so unique as to “undermine the possibility of coincidental
similarity.”
The
Court rejected this view and held that, in the first place, the lines are
entirely different. In the second, analogising to models as a shorthand for
beauty is commonplace in our society. The particular selection of Kate Moss,
who is very famous in her own right, added little to the creative choice.
Conclusion
Having
examined all these issues, the Court dismissed Vince P’s claim as unfounded.
This blogger thinks that the judgment sounds about right. It can be said that
Vince P's claim failed over lack of originality of the parts of the song
Kanye West allegedly copied from his version of Stronger. As
commented in the FindLaw Blog, "You don't hear Nietzsche's ghost whining about everyone ripping him off.
That's because - as the lyrics of the song you copyrighted would suggest - what
doesn't kill you makes you stronger."
