The song remains the same? Copycats tricky to tag in a recycled culture
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By Mark Caro
You know our culture has reached a strange point when artistic copyright infringement suits seem almost quaint. You mean the world really does value originality and really does protect individual creative rights?
Originality seems a far-off concept in this summer of the regurgitated "A-Team" and "Karate Kid," the umpteenth "Robin Hood," the fourth "Shrek," the third "Toy Story" and "Twilight," the second "Iron Man" and "Sex and the City," the first (and last?) "MacGruber" and the first "Last Airbender"? With Katy Perry and Snoop Dogg's "California Gurls" (as opposed to the Beach Boys' "California Girls") topping Billboard's Hot 100, and Ke$ha's "Your Love Is My Drug" (as opposed to Roxy Music's "Love Is the Drug") in the Top 10?
And individual creative rights? In this era of free-for-all sampling and rampant illegal downloading?
Kanye West navigated this landscape by giving a songwriting credit to the French electro-dance duo Daft Punk for sampling their 2001 song "Harder, Better, Faster, Stronger" in his 2007 hit "Stronger." He also spun off a famous line from late-19th century philosopher Friedrich Nietzsche for the song's title hook: "That don't kill me can only make me stronger."
Yet Virginia rapper Vince P. (Vincent Peters) filed suit against the Chicago hip-hop superstar on June 25 for copyright infringement, claiming that his 2006 song "Stronger" formed the basis of West's worldwide smash. The suit alleges that Peters shared his song with West's friend/business manager John Monopoly, and it cites such similarities as the title (which cannot be copyrighted), random references to model Kate Moss and the following stanza:
Vince P.: "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 longer."
West: "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."
Chicago lawyer Bill McGrath, who represents Peters, said even if a song incorporates "existing concepts and material" (such as a German philosopher's quote), as a whole it still must be regarded as original, and if enough key elements are repeated from one work to the other, then copying has taken place.
The song's key phrase certainly has become well worn. The Belgian singer Natalia released a 2004 song called "What Don't Kill You Makes You Stronger," and "The Dark Knight" writer/director Christopher Nolan had reason to assume the audience's familiarity with the saying when he had the Joker proclaim: "I believe whatever doesn't kill you simply makes you ... stranger."
"Can't/couldn't wait much longer" also isn't a unique turn of phrase; Robin Trower has a 1973 song called "I Can't Wait Much Longer" that includes a rhyme with, yes, "stronger."
West's attorney did not respond to requests for an interview.
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The most famous song copyright infringement cases have revolved more around music than lyrics, such as George Harrison's "My Sweet Lord" being deemed "subconscious" plagiarism of the Chiffons' "He's So Fine" or Ray Parker Jr.'s settling of a claim that his "Ghostbusters" theme copied Huey Lewis and the News' "I Want a New Drug."
The Beatles' "Come Together" shared a similar cadence and melody with Chuck Berry's "You Can't Catch Me," but the clincher may have been John Lennon's singing "Here come old flat-top" as opposed to Berry's "Here come a flattop." (Lennon settled.) Given the musical and lyrical similarities of their "Forever Young" songs, Rod Stewart wound up giving Bob Dylan a songwriter credit.
Late last month singer/ songwriter Jake Holmes sued Jimmy Page of Led Zeppelin, claiming that the band's "Dazed and Confused" of 1969 is derived from his "Dazed and Confused" from two years earlier. The two songs have similar descending bass lines and title phrases, though the melodies and other lyrics diverge.
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"There's really nothing magic or different about lyrics in terms of copyright infringement," said Angela Washelesky, head of law firm Reed Smith's Chicago trademark practice. "It's the same test that's used for other copyrighted items like books or movies: Is it substantially similar to the original?"
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When Tom Petty sang about a "rebel without a clue" in his 1991 song "Into the Great Wide Open," many Replacements fans balked because the phrase had appeared in that band's 1989 hit "I'll Be You." Few probably were aware that on a 1986 album Bonnie Tyler sang the Jim Steinman song "Rebel Without a Clue."
Chicago-based entertainment lawyer/theatrical producer David Garfinkle (the upcoming Broadway musical "Spider-Man Turn Off the Dark"), noted a case in which plaintiff Calvin R. Johnson complained that SWV's 1996 No. 1 R&B hit "You're the One" copied his own "You're the One (For Me)."
The judge ruled that although both songs prominently feature Johnson's title phrase, "The record reflects, as does the United States Copyright Offices Registered Works Database, that hundreds of composers have registered songs capturing the same sentiment in the same verbiage. It is thus readily apparent that this lyric is too trite to warrant copyright protection."
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Supporting his client's case against West, McGrath cited a suit in which the 1998 Public Announcement recording "D.O.G. in Me" was ruled last year to have copied George Clinton's "Atomic Dog" based on the use of "Bow wow wow, yippie yo, yippie yea" as well as the low-voiced repetition of "dog."
Hollywood gets its share of copyright-infringement suits as well. "I don't think I've ever been involved with a successful movie - whether as a lawyer, a studio executive or a producer - that wasn't sued by someone claiming that the movie stole from it," said Tom Pollock, George Lucas' former lawyer who went on to run Universal Pictures and more recently has produced such films as "Old School," ''Up in the Air" and "Disturbia."
Meanwhile, wacky-assassin movies such as this summer's "Killers" and "Knight and Day" manage to co-exist, as have TV shows such as "Supernanny" and "Nanny 911" as well as the "Saturday Night Live"-behind-the-scenes shows "30 Rock" and the ill-fated "Studio 60 on the Sunset Strip." Too bad no one can trademark "We have a situation here" or that moment when the good guy reveals a secret recording of the bad guy admitting misdeeds.
So the question may not be what is completely new but rather what is assembling recycled parts in a completely new way. Nolan's "Inception," which opens Friday, is one of the summer's few blockbusters not associated with a presold franchise, and its advance Los Angeles screenings have drawn raves, including from Pollock.
"I could write a source list two miles long that it borrows from," he said, "yet it feels as original a movie as we've seen this summer."
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