Alwyn Phillips is a JD Candidate at Osgoode Hall Law School and currently enrolled in the course Law & Social Change: Law & Music, in Winter 2011. As part of the course requirements, students are asked to write a blog on a topic of their choice.
On March 3, 2011, recording artist Kanye West was granted a motion to dismiss a copyright infringement suit brought by recording artist Vincent Peters in the District Court for the Northern District of Illinois, Eastern Division. Peters, professionally known as Vince P., alleged that the chorus, or “hook” for West’s hit song “Stronger”, was copied in part from Vince P.’s song which was also entitled “Stronger”.
The hook in Peter’s song is:
What don’t kill me make me stronger
The more I blow up the more you wronger
You coped my CD you feel my hunger
The wait is over couldn’t wait no longer
The hook in West’s song is:
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
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 ya
To establish copyright infringement under American federal law, a plaintiff is required to prove two elements: (1) ownership of a valid copyright; and (2) copying of constituent elements of the work that are original (Feist Publ’ns v Rural Tel Serv Co). The Northern District of Illinois judge made quick business of establishing that Peters owned a valid copyright. The following will summarize the key issues faced by Peters in satisfying the 2nd step.
Copying of Constituent Elements
Copying may be inferred where the defendant had access to the copyrighted work and the accused work is substantially similar to the copyrighted work (Susan Wakeen Doll v Ashton Drake Galleries). In November, 2006, Peters allegedly gave a copy of his song to West’s close friend and business associate. Further, Peters alleged that he widely distributed his song by posting it on his MySpace page in late 2006 and early 2007. Thus, the Court held that West had access to the copyrighted work.
From here, however, Peters was unable to prove that his and West’s songs were substantially similar. Peters alleged that the songs were similar due to their titles, a reference to English model Kate Moss, and the similar portions of the hook. The Court wasted no time in dismissing the first two allegations, ruling that titles by themselves are not subject to copyright protection (Wihtol v Wells), and names and addresses are in the public domain and are not copyrightable (Schroder v Morrow).
The majority of the Court’s analysis was spent on whether the Hook was a protectable element. Peters’ submission in regards to this is based on three issues: (1) both his and West’s hook reference the maxim “that which does not kill us makes us stronger”; (2) the hook in West’s song includes the line “can’t wait much longer” while the hook in Peters’ song includes the line “couldn’t wait no longer”; and (3) both hooks use the words “wronger”.
On the first issue the Court ruled that maxims that enjoy a “robust existence in the public domain long before being employed in the lyrics” are not protectable. On the second and third issues they ruled that short phrases expressing clichéd language are also not protected (Alberto-Culver Co v Andrea Dumond). In regards to the word “wronger”, while the word may not be common, it was ruled to not be unique to Peters and was considered a part of a common rhyme scheme ending in “-er”. Such common rhyme schemes are not protectable.
Peters then submitted that an original combination of unprotectable elements can be protectable. The Courts, however, only apply this rule to rap songs when “an entire phrase is copied verbatim, as well as the rhythm and tempo to which it is set out to (Lessem v Taylor).” West does not use the alleged copied elements in such a manner.
Substantial Similarity
As a last effort, Peters submitted that the two songs have “fragmented literal similarities”. This doctrine instructs courts to find substantial similarity when smaller fragments, such as direct quotation or close paraphrasing, are significantly related to the plaintiff’s work as a whole. The Court ruled that the elements in question do not have recognizable significance, and to qualify under the doctrine the fragments must be an integral part of that work “as readily recognizable in terms of their relationship to the work as ‘E.T. phone home’ is to its movie source.”
The Court granted West’s motion to dismiss.
Let this be a lesson to all up-and-coming rap artists. If you would like copyright protection, dare to be different and refrain from using clichéd language that has robust existence in the public domain.