Posing some difficult questions: the COPYKAT investigates

Jumpman blocks photographer's shot at copyright claim

In January 2015 the CopyKat covered the case brought by photographer Jacobus Rentmeester against sporting apparel giant Nike, concerning Rentmeester's 1984 photograph of world-famous basketball star Michael “Air” Jordan, who was warming up for the Los Angeles summer Olympic games. Rentmeester had Jordan use a long horizontal jump technique known in ballet as a 'grand jete.’ It’s worth noting here that the jump itself is unusual for basketball and not something Jordan would have done in normal practice - so in effect a pose.

Rentmeester allowed Nike to use the image for a temporary advertising campaign, but In 2014, Rentmeester accused Nike of copyright infringement. His lawsuit alleged that the sports giant copied his carefully choreographed picture using Jordan's left hand to slam dunk the ball. The “jumpman” silhouette logo is known the world over, and is used to promote Nike’s Air Jordan brand of basketball shoes and sportswear. According to Reuters, The Jordan brand now generates $3.1 billion of annual revenue for Oregon, USA headquartered Nike.

Rentmeester’s case was dismissed in June 2015 (this was covered by the CopyKat here), with the judge finding that the only similarity  between Rentmeester’s photograph and Nike’s “Jumpman” logo was that of Jordan’s pose.  The poses were not substantially similar and the District Court of Oregon dismissed Rentmeester’s claims. You can read a very good analysis of this decision over at the IPKat here.

Rentmeester subsequently appealed. However, in a In a 2-1 decision, the 9th U.S. Circuit Court of Appeals has upheld the original decision. In his judgement, Circuit Judge Paul Watford wrote that while both images “capture Michael Jordan in a leaping pose inspired by ballet’s grand jeté,” they were not substantially similar because of differences in setting, lighting and other elements. He added that “all the Nike photographer did [was] build freely upon the ideas and information conveyed by [Rentmeester’s earlier] work.”

The case is Rentmeester v Nike Inc, 9th U.S. Circuit Court of Appeals, No. 15-35509 and also see an updateon the IP Kat here)

Playboy Bunnies vs Boing Boing

Playboy has failed in its attempts to claim that a hyperlink to copyright-infringing content at Imgur and YouTube is itself illegal.  

In November of last year, Playboy filed a copyright infringement lawsuit against Happy Mutants, the parent company of website Boing Boing. Boing Boing calls itself “a Directory of Mostly Wonderful Things,” and in 2016, provided a link to a separate gallery of "Every Playboy Playmate Centerfold Ever," hosted on imgur.

The subject matter of the suit included 477 photographs of models, known as "centerfolds." Playboy owns these centerfold images and argued that by linking to online versions of these photos, Boing Boing used, distributed, and exploited said images in websites without Playboy's authorisation or consent. Playboy further accused Boing Boing of vicarious

In a Court order, US District Judge Fernando Olguin noted the court was “skeptical that plaintiff has sufficiently alleged facts to support either its inducement or material contribution theories of copyright infringement.” Olguin allowed Playboy to amend their claims and resubmit, but Playboy failed to do so before the 26 February deadline.

In their press release, Boing Boing thanked their “brilliant attorneys” at the Electronic Frontier Foundation for “standing up to "Playboy's misguided and imaginy claims." EFF explained it was “hard to understand why Playboy brought this case in the first place, turning its legal firepower on a small news and commentary website that hadn’t uploaded or hosted any infringing content.”

Responding to a journalist’s story on the case, Playboy provided a statement which continued the assertion that Boing Boing "is supporting and contributing to privacy and content creators should not tolerate it.” And although they are not filing an amended complaint at this time, Playboy “will continue to vigorously enforce our intellectual property rights against infringement.”   Image by Robobobobo and used under a Creative Commons Licence.

EU Recommendations formalise earlier guidelines on IPR enforcement

The European Commission has released a new statement, entitled “A Europe that protects: Commission reinforces EU response to illegal content online.”

The Recommendation gives formal effect to the political guidelines set out in the Communication on tackling illegal content online, first presented by the Commission in September 2017.

In that earlier Communication, the Commission promised to monitor progress in tackling illegal content, and assess whether additional measures are needed to ensure the swift and proactive detection and removal of such content. The Commission focuses on detection and removal of illegal content through both reactive (so called 'notice and action') and proactive measures.

These Recommendations are aimed at European Member States, as well as companies, and are to be used as initial proactive steps before the Commission determines whether new legislation should be proposed. The Stronger procedures suggested include better safeguards and full respect of fundamental rights, freedom of expression and data protection rules, as well as utilisation of  more efficient tools and proactive technologies.

Interestingly, the Commission suggests that shared responsibility could particularly benefit smaller platforms with more limited resources and expertise in halting infringement. In particular, the Commission recommends that industry should, through voluntary arrangements, cooperate and share experiences, best practices and technological solutions, including tools allowing for automatic detection.

In terms of next steps, The Commission will continue analysing the progress made and will launch a public consultation later this spring.

You cannot copyright the dolphins!

The depiction of two dolphins crossing underwater is an "idea that is first found in nature," and therefore cannot be the subject of copyright protection, as per the U.S. Court of Appeals, Ninth Circuit decision in the case of Folkens v Wyland.

Peter A. Folkens is wildlife artist who, nearly 40 years ago, drew an  illustration of two dolphins crossing each other underwater. The pen and ink artwork depicts one dolphin swimming vertically and the other swimming horizontally.

Robert Wyland painted “Life in the Living Sea,” an underwater scene of two dolphins crossing underwater. Folkens' drawing, was adapted for use on an inexpensive Greenpeace charity postcard. On the other hand, Wyland sells art and merchandise through his Wyland Worldwide business, reported to make $100 million annually (LA Weekly).

Although the artworks are different in many respects - colour, lighting, and medium - there are certain similarities, with the primary similarity (similar to the Rentmeester v Nike case we mentioned above) being the "pose."

A trial judge first reviewed the works to determine if they were "substantially similar," and decided that this pose was a natural position incapable of protection under copyright law. Folkens appealed, but the Ninth Circuit has upheld the original decision.

In its judgement, the Ninth Circuit explained that despite this similar positioning of the dolphins, a pose is not ordinarily copyrightable unless combined with something else. In particular, “a collection of unprotectable elements - pose, attitude, gesture, muscle structure, facial expression, coat, and texture - may earn “thin copyright” protection that extends to situations where many parts of the work are present in another work.”

Folkens attempted to argue that the dolphins he drew are not exhibiting natural behaviour, because photos upon which he based his illustration on were of dolphins posed by professional animal trainers in an enclosed environment. However, Wyland’s counter-argument included an assertion that animal trainers can pose animals to capture positions that naturally occur in the wild.

This “idea” of crossing dolphins was first expressed in nature, and was therefore held by the court to be “within the common heritage of humankind.” Accordingly, no artist may use copyright law to prevent others from depicting this ecological idea. Is this a case of “scene a faire” gone too far? Does it demonstrate that any “natural” pose by anyone (or any animal) is incapable of copyright protection? For the benefit of further analysis, this CopyKat would have preferred the matter go to trial, rather than conclude by way of summary judgment.  

Project Gutenberg: the German edition - laudable, but still infringing!

Project Gutenberg is an American website which offers 56,000 free books, many of which have had their copyright expired in the United States. Such classics available include Pride and Prejudice, Heart of Darkness, Frankenstein, A Tale of Two Cities, Moby Dick, and Jane Eyre. The website is run on servers at the University of North Carolina at Chapel Hill, and is classified as a non-profit charity organisation under American law. The website is a volunteer effort which relies mostly on donations from the public, "to digitise and archive cultural works to encourage the creation and distribution of eBooks."

Despite the noble cause of making literature available at no or low cost to the masses, a recent ruling (https://cand.pglaf.org/germany/gutenberg-lawsuit-judgement-EN.pdf ) against Project Gutenberg has resulted in the website being geo-blocked for all visitors attempting to access the site from Germany. The claimants in the case are the copyright owners of 18 German language books, written by three authors, each of whom died in the 1950s. In Germany, the term of copyright protection for literary works is "life plus 70 years," which differs from the US approach for works published before 1978 where the works would be in the public domain. They are not in Germany.

The copyright holders of these works notified Project Gutenberg of their alleged infringement back in 2015. In early February 2018, the District Court of Frankfurt am Main approved the claimant's "cease and desist" request to remove and block access to the 18 works in question. The claimants also requested administrative fines, damages, and information in respect of how many times each work was accessed from the website.

The Court reasoned that it was worth taking into account the fact that the works in dispute are in the public domain in the United States. This however "does not justify the public access provided in Germany, without regard for the fact that the works are still protected by copyright in Germany." The judgement also cited Project Gutenberg's own T&Cs in its decision, noting that the website considers its mission to be "making copies of literary works available to everyone, everywhere." While this broad statement may seem innocuous and idealistic, the court used this to support its findings that Project Gutenberg could not reasonably limit itself as an American-only website.

A key point in this matter is the question of jurisdiction. While Project Gutenberg is based in the USA, the claimants successfully argued that as the works were in German and parts of the website itself had been translated into German, the website was indeed "targeted at Germans." Furthermore, even if the website had not been intended for German audiences, that the infringement occured in Germany is sufficient grounds to bring the claim in German court.

While Project Gutenberg was only required to remove the 18 works listed in the lawsuit, the organisation has blocked its entire website in Germany to protect itself from any further potential lawsuits on similar grounds (see the Q&A here https://cand.pglaf.org/germany/index.html )

Project Gutenberg is planning to appeal the decision. There is more on the IPKat here at http://ipkitten.blogspot.co.uk/2018/03/gutenbergorg-loses-to-german-publisher.html

This CopyKat by Kelsey Farish

THE COPYKAT - A copyright infringement oriented week!

This CopyKat by Lolita S.
Let’s start with a videogame, shall we?

Many of you have already heard about League of Legends, a MOBA (Multiplayer Online Battle Arena) extremely famous in the videogame world. A lot of tournaments based on this game are organised each year, and its reputation spans America. And who says fame, says copyright infringement. 

A Chinese video game studio is currently accused of making a very similar version of League of Legends!

From the characters to the map, everything is very similar! A report took an example of one of the most prominent figure of the game, the young girl “Annie”. And as you see below, well, it seems very clear doesn’t it?

The owner of League of Legends, Riot Games, has sued the Chinese company in the federal court in Los Angeles for copyright and trademark infringement. And soon we will see how this battle is going to end!

Forever 21, again and again!

Forever 21 is once again being sued by Mara Hoffman for copying one of her original prints. According to it’s complaint, Forever 21 infringed her copyright-protected “Leaf” fabric print.

The complaint is as follow: according to Mara Hoffman, Forever 21 ““infringed [its] copyright by manufacturing, importing, displaying, distributing, selling, offering for sale, promoting and advertising women’s swimwear which exploit, use or otherwise incorporate a design unlawfully taken from Mara Hoffman’s copyrighted work.”

And apparently, it’s not the first time! Mara Hoffman said that she has been the target of Forever 21 in the past: in 2012 and in 2013.

She is seeking for monetary damages in connection with the alleged copyright infringement.

The case: Mara Hoffman, Inc. v. Forever 21, Inc., 1:17-cv-05393 (SDNY). 

“Reproduction” of an original work

A lawsuit filed in New York this week has at heart a quite complicated question: how much can you conserve an artwork before it becomes something entirely different?

Cady Noland claims that a conservator has been paid to repair her sculpture Log Cabin without consulting her. By “repair”, she claims that it was way beyond the bounds of normal conservation.

According to her, this reparation is so different from the original work that it became a copy of her work. For her, the conservator destroyed the original work and created an unauthorized reproduction. According to the law, this is copyright infringement – yes, again!

Ladies [and Gentlemen] Now Let’s Get [IP] [“INFORMATION”]

Matthew Fulks, an independent filmmaker, had filed a copyright infringement suit against Beyoncé on June 8, 2016, claiming that the trailer (the Trailer) for her “Lemonade” movie (the Movie), which accompanied the April 2016 release of her Lemonade album, infringed on his copyright in the short movie Palinoia. Fulks created the seven-minute Palinoia movie in 2014, which the Seconded Amended Complaint (SAC) describes as “carefully selected but seemingly unrelated visuals in a rapid montage, with the recitation of a poem used as voiceover against a distinctive audio soundtrack.” The short movie “depict[s] the pain of a tumultuous relationship.”

On September 12, 2016, Judge Rakoff from the Southern District of New York (SDNY) granted Beyoncé’s motion to dismiss, writing a thoughtful and entertaining opinion, where Voltaire, Oscar Wilde, the Beatles, Tchaikovsky, Andy Warhol and Taylor Swift all made an appearance. The case is Matthew Fulks v. Beyoncé Giselle Carter-Knowles, Sony Music Entertainment and al., 1:16-cv-04278-JSR.

Judge Rakoff's Opinion is Hot Stuff

Elements of a Copyright Infringement Suit

If there is no direct evidence of copying, then plaintiff in a copyright infringement suit must prove that the defendant had access to the protected work and that there are substantial similarities of protectable material in the two works.

Plaintiff claimed that Defendants had access to his movie, as Plaintiff had submitted Palinoia to Defendant Sony/Columbia in July 2015, as part of an application for a directing job, and its receipt was acknowledged by email. Defendants did not deny this.

Plaintiff further alleged in the SAC that the Lemonade Trailer was substantially similar to Palinoia, including, but not limited to its “visual and auditory elements, visual and auditory sequences, themes, format, mood, setting, plot, and pace, all of which create a protectable total concept and feel” and that it was an unauthorized derivative work.

Judge Rakoff quoted the Second Circuit Yurman Design, Inc. v. PAJ, Inc. case, which defined substantially similar works as works which an "ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard [the] aesthetic appeal as the same,” and the Second Circuit  Peter F. Gaito Architecture case, which explained that the courts apply the substantial similarity test by "compar[ing] the contested design's total concept and overall feel with that of the allegedly infringed work… as instructed by our good eyes and common sense."

No Substantial Similarity in the Visual Elements

Plaintiff alleged that the Trailer contained nine visual elements substantially similar to Palinoia’s visual elements. These elements are (1) a head down near a graffiti wall; (2) red persons with eyes obscured; (3) parking garage; (4) stairwell; (5) black and white eyes; (6) title cards screen; (7) grass scene; (8) feet on street; and (9) side-lit ominous figures. The SAC has side-to-side screenshots from both works illustrating the allegations.

Judge Rakoff engaged in an analysis of these nine elements, but was not convinced that the Trailer infringed Palinoia. Instead, “[o]nce stripped of unprotected elements and scenes a faire, these scenes from Palinoia and the Trailer and Film have very little in common.”

Not the Same Aesthetic Feel

Judge Rakoff was not convinced as “Plaintiff's alleged similarities consist almost entirely of clearly defined ideas not original to plaintiff and of stock elements with which even a casual observer would be familiar. Moreover, to the very limited extent that there are even any superficial similarities, these are overwhelmed by the works' vastly different creative choices and overall aesthetic feel.”

Judge Rakoff quoted the SDNY LaChapelle v. Fenty case, where the court explained that “[o]riginality in rendition may reside in the photographer's selection of lighting, shade, lens, angle, depth of field, composition, and other choices that have an aesthetic effect on the final work." In other words, you can have the idea of filming a parking garage, a grass scene or a distressed person heads down near a graffiti wall, but it is the expression of this idea which is protected, not the idea itself. As both works had been expressed in different ways, there were not similar.

For example, as explained by Judge Rakoff, when analyzing the first visual element claimed as original by plaintiff, a person seen head down near a graffiti wall, the concept of a "state of distress" is an unprotected idea, and it “flows naturally and necessarily that a distressed character would be leaning (as opposed to dancing) against something stable (as opposed to delicate) and that his or her head would be down (as opposed to up.)” Instead, what was essential as to whether there was infringement is the comparison of the way the two scenes were filmed. Because the scenes were aesthetically different, there was no infringement.

Judge Rakoff analyzed all the nine visual elements in turn, and found that none of them had the same aesthetic than the Trailer. Therefore, he found them not similar with the Lemonade Trailer scenes.

No Substantial Similarity in the Auditory Elements

Plaintiff also alleged in his SAC that both works included “the voiceover of a narrator reciting poetry over the sounds in the background” and that the audio sequences of both works were substantially similar, as they both followed “a similar pattern in which harsh noises are separated by calmer sounds in a substantially similar time table” and both included “crescendos and decrescendos.”

But for Judge Rakoff, “no reasonable jury, properly instructed, could find infringement based on plaintiff's… alleged similarities… [in] the works' audio… The idea of juxtaposing poetry and disharmonious sound is not protectable.” Plaintiff must prove instead that the way he expressed this idea, such as his choice of poetry and sound, has been copied. However, Plaintiff did not prove this in this case.

Not the Same Total Concept and Overall Feel

For Plaintiff, the mood, setting, pace, and themes of both works were substantially similar which contributed “to the overwhelming similarity of total concept and feel.” Both moods were “heavy, dark, and angst-laden.’” Both settings included similar environments, such as an empty dark parking garage, grass field, and a stairwell. The pace of both works was “a rapid procession of short scenes or montage, interspersed with notable intermittent pauses through exaggeratedly slow scenes.” Also, both works had different themes “destruction, alienation, heartbreak, and chaos versus order.”

But Judge Rakoff noted, somewhat ironically, that:

“[a]pparently intent on exploring the boundary between idea and expression, plaintiff alleges that the works share the same narrative theme ("a struggle of a relationship") and the same aesthetic mood and pace ("a pattern of successive montage of abstract scenes, with unknown or unclear meanings, pieced together in 'short takes'"). These alleged similarities fall firmly on the side of unprotected ideas. The "struggle of a relationship" is a concept familiar to us all, and plaintiff is not the first individual - or artist - to comment on it. See, e.g., R. Hart-Davis, The Letters of Oscar Wilde 621 (1962) ("[H]earts are made to be broken"); Taylor Swift, "I Knew You Were Trouble"(2012).”

Plaintiff argued that the "race of the characters in the [Film] is irrelevant to the total concept and feel of a film about relationships.… Judge Rakoff wrote that the Lemonade Movie is not just about relationships, but instead:

“depicts the protagonist's journey from a particular perspective: that of an African-American woman in a predominantly African-American community… The Film repeatedly references and dramatizes generations of African-American women, and in the background of one scene, the observer hears an excerpt from a speech by Malcolm X to the effect that the Black woman is the most "neglected" person in America…. This all takes place against what defendants accurately characterize as a "Southern Gothic feel."… The settings transition between areas of New Orleans, the abandoned Fort Macomb, and an Antebellum plantation. These significant differences in characters, mood, and setting further distinguish the total concept and feel in the [Lemonade] Film from that in Palinoia.”

Plaintiff also argued that both works "portray a struggle of a relationship; the reasons for such struggle are unclear and irrelevant." But for Judge Rakoff, “[t]his is like saying that Casablanca, Sleepless in Seattle, and Ghostbusters are substantially similar despite the different motivating forces behind the struggles there portrayed (Nazis, capitalism, and ghosts, respectively).”

Trailer, Movie, Album

Judge Rakoff remarked “that the differences in total concept and feel are initially more pronounced between Palinoia and the [Lemonade] Film than between Palinoia and the [Lemonade] Trailer” but that “the difference in overall concept and feel between Palinoia and the [Lemonade] Trailer still overwhelms any superficial similarities.”

I was surprised to read that Plaintiff claimed that the Trailer for the Lemonade Movie had infringed his own short movie, as it was meant to be a teaser announcement for both the Movie and the Lemonade album. As noted by Judge Rakoff, the Lemonade Movie “marks the protagonist's progression through thematic headings, and narrates it with songs from the Lemonade album.” The Trailer shows scenes of the 58-minute Lemonade Movie, which itself follows the sequence of the Lemonade album, which itself narrates a story, from one song to another. There are several layers of creation behind the trailer, the originality of which stems from both the originality of the Lemonade Movie and the Lemonade album. The hurdles of proving substantial similarities between the trailer, a derivative work of an original work featuring another original work, and the short film, an original work in itself, was therefore very high.

Image of hot sauce is courtesy of Flicker user Joe King under a CC BY 2.0 license.

More of the same? The plot thickens

Following on from the decision last week about the alleged similarities between two works about the life of ‘Effie Gray’, comes news that a Florida judge has allowed an infringement  claim by a Venezuelan television network against an American television group over the plot of a telenovela to move forwards. Judge Robin Rosenbaum, in the U.S. District Court for the Southern District of Florida, ruled that Venezuela's LaTele Television CA can proceed with its copyright lawsuit against Telemundo Communications Group LLC, accusing the U.S. company of infringing the copyright in "Maria Maria," a LaTele telenovela about the adventures of a young woman with amnesia. The alleged copy, "La Rastro," is also about a young woman with amnesia. Refusing to dismiss the case, Judge Rosenbaum  said that although the distinction between an idea and its particular expression is "a lot easier stated than applied," the case could go forward, listing similarities in the two programs that included both main characters who, after confronting the husband's mistress, are severely injured in a car crash; the fact that both main characters have facial reconstruction surgery causing them to look exactly like the mistress; and that both characters also do not initially remember their original identities. Judge Rosenbaum also noted that "Maria Maria", which first aired in 1989, and "La Rastro" which premiered in October 2008, shared a writer. 

And in the final of three recent decisions on what is and isn't substantially similar, and one the swings back towards the decision in ‘Effie Gray’, US District Judge Dolly Gee has ruled that the 2011 film In the Land of Blood and Honey, Angelina Jolie’s directorial debut, is not substantially similar to a book on the Bosnian civil war, The Soul Shattering (Slamanje Duse) by Bosnian writer James J Braddock (Josip J Knezevic). Braddock claimed that the film, about a love affair during the Bosnian Civil War, violated his copyright in The Soul Shattering and that one of the film's producers, Edin Sarkic had read The Soul Shattering and there had been discussions over the possibility of creating a film adaptation of the book. The Soul Shattering is based on the true story of a Bosnian-Croatian woman rescued from a Serbian concentration camp by the camp's deputy commander - and after analysing the plot and sequence of both works, Judge Gee noted

that the film features a relationship between a female Bosnian Muslim artist and Serbian soldier, who meet again when the woman is a prisoner at a camp the Serbian's ruthless father is  overseeing. Both include escape sequences and brutal rape scenes, but Judge Gee said that Braddock, who now lives and writes in Croatia, can't claim to have "invented the concept of rape as a war crime" and said that whatever similarities there were they didn’t give rise to substantial similarity, "particularly in light of the fact that those overlapping concepts are commonplace in books and films depicting war" adding In The Land of Blood and Honey was primarily a story of betrayal, revenge and tragedy with little or no hope, while The Soul Shattering focuses on family, love and strength. Jolie had said she got the idea for the book after travelling to Bosnia as a UN goodwill ambassador.

With Effie Gray and In The Land of Blood and Honey, both 'plots' were based on real life scenarios, albeit added to  - the historical life of Effie Gray - and the Bosnian civil war. The Maria Maria claim is, in contrast, based on a wholly fictional plot. In between one might put the claim brought by by the Authors of The Holy Blood and The Holy Grail against Dan Brown, author of the Da Vinci Code - where is was alleged that the 'central theme' of the HBHG had been copied by Brown. At the Court of Appeal, refusing the appeal against the judgment of Mr Justice Peter Smith that whilst six chapters of the DVC had been drawn from the HBHG, there had been no copying, Mummery LJ said “Original expression includes not only the language in which the work is composed but also the original selection, arrangement and compilation of the raw research material. It does not, however, extend to clothing information, facts, ideas, theories and themes with exclusive property rights, so as to enable the Claimants to monopolise historical research or knowledge and prevent the legitimate use of historical and biographical material, theories propounded, general arguments deployed, or general hypotheses suggested (whether they are sound or not) or general themes written about. "

LaTele Television CA v. Telemundo Communications Group, U.S. District Court for the Southern District of Florida, No. 12-22539. 

James Braddock v Angelina Jolie, GK Films and Others United States District Court Central District of California CV 12-05883 DMG (VBKx). You can view an annoyingly "branded"  Pdf of the judgment from the Hollywood Reporter here.

More at http://www.aceshowbiz.com/news/view/00059067.html  and from the Hollywood Reporter here

Baigent and Leigh v The Random House Group Ltd [2007] EWCA Civ 247  the decision can be found here 

How Nietzsche rescued Kanye West from infringement claim

Kanye feels Stronger after the ruling

US musician/film director/fashion designer Kanye West is well-known not just to gossip lovers (recently because of his relationship with socialite/reality TV star/model/actress Kim Kardashian), but also to copyright aficionados. 

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.”

German philosopher Nietzsche

After writing this song (which describes the competitive nature of the hip-hop and rap world), Vince P sent it to producer John Monopoly, a close friend and producer to Kanye West. Monopoly was apparently impressed with Vince P's work and agreed to be his producer. Eventually, however, the proposed collaboration foundered.

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

What "substantial similarity" is about?
(photo by Diane Arbus)

To address this issue, the Court first reviewed the differences among the Circuits about the relation between proof of access and evidence of similarity, and then considered whether the similarities alleged by Vince P sustained a valid claim of infringement.

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. 

Reference to Kate Moss as paragon of 
female beauty is a trite one, 
held the Court

(iii): Kate Moss

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."