Four copyright disputes in the music industry

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We continue to read of copyright disputes in the music industry and this month is no exception.

The first case comes from China, where Beijing was recently awarded the 2022 Winter Olympics. The Chinese authorities have wasted no time and have reportedly already launched no less than 10 official theme songs. One of these, ‘Bing Xue Wu Dong’ (which translates as ‘The Snow and the Ice Dance’) has unfortunately found itself at the centre of a copyright controversy. It apparently sounds uncomfortably like the song “Let it go” from “Frozen” (which, of course, requires no introduction). The unveiling of the song resulted in a storm of negative criticism on social media with the word “plagiarism” to the fore. We are not aware that Chinese officials have commented but the story is unwelcome for China, which is keen to rid itself of the tag as a haven for counterfeiting and intellectual property rights infringement. It should also be stated that, so far as we are aware, Disney is not claiming copyright infringement.

The second concerns The Great British Bake Off and The Sound of Music, not shows that one would necessarily associate with the sharper edge of the law. The advert for the new series featured presenters Mary Berry and Paul Hollywood dancing on a hillside singing along to a parody of the original song, ‘The Sound of Music’ from the 1965 film of the same name. The Bake Off version is a parody containing lines like “The hills are alive with the smell of baking” and “the hills fill my heart with a love of baking”.

This of course was a parody and there is a statutory parody exception to copyright infringement, introduced as recently as last October. “Parody” is defined in the Oxford English Dictionary as “an amusingly exaggerated imitation of the style of a writer, artist, or genre” and this highlights a problem with the parody exception, namely that what is amusing to one person may not be to another. Certainly, the BBC was not inclined to take chances and at the first whiff of a suggestion of copyright infringement – in the form of a letter from the publishers of the original song (Rodgers and Hammerstein) demanding its withdrawal – it pulled the advert. The BBC denies that the withdrawal of the advert was related to the complaint, saying that it was planning on running other trailers anyway. Either way, its passing is unlikely to be greatly mourned.

The third case concerns the singer, Justin Bieber, adored by teenage girls around the world. In the case of Copeland et al v Bieber et al, the plaintiff, a Devon Copeland, created a song called “Somebody to Love” in 2008. Copeland registered a copyright for the work and then gave a song to a company that recruits artists to promote the work. That company in turn presented the song to the singer Usher. Usher allegedly then gave the song to Bieber who released his own version in 2010. Copeland filed for copyright infringement against Bieber, Usher and others. The defendants sought to dismiss the actions on the basis that no reasonable jury could find that the songs were “substantially similar”, a prerequisite to a finding of copyright infringement. The defendants succeeded before the district court, the court ruling that despite some shared elements, the “mood, tone and subject matter” of the songs differed significantly.

On appeal, the 4th Circuit vacated that decision, finding that the choruses of the songs were such that a jury could find the songs intrinsically similar. The case has therefore been remanded to the district court for further proceedings.

We have previously written on the copyright dispute unfolding in America concerning the song “Happy Birthday to you”. By way of update, the lawyers for the claimant are saying that they have uncovered evidence that the song is even older than the defendant, Warner/Chappell, maintain and that the song was freely available before the work was first copyrighted in 1935. As a result, the claimant is seeking summary judgment. Warner/Chappell’s response is that the new evidence raises issues the resolution of which requires a full trial. We will keep you posted.