There are very few people who are not aware of the iconic melody of the piece of music commonly known as “The Lion Sleeps Tonight” that was made famous by Disney’s animated film “The Lion King”, released in 1994. Most people will also be aware of the bitter spat that ensued between the family of Solomon Linda, who is now credited with being the original composer of the Zulu song on which Disney’s song was based, and the Walt Disney Corporation around ownership and alleged infringement of Solomon Linda’s original work by Disney. The dispute was eventually settled in 2006 with the parties reaching a settlement agreement obliging Disney to pay an undisclosed (and no doubt hefty) sum of money in lieu of royalties.

In the more recent past there have been a plethora of disputes between famous musicians, with one claiming that another has copied his music and as a result, violated his copyright. The most notable disputes that have come to light in the recent months involve big names like Madonna, Pharrell Williams, Robin Thicke, Led Zeppelin and Ed Sheeran.

In Madonna’s case, the subject of the dispute goes back many years, to the early 1990’s, and involves her smash hit, “Vogue”. In this case the plaintiff, VMG Salsoul, LLC, alleged that Madonna had copied a 0.23 (yes, less than one second) from an earlier song known as “Love Breaks”. The case revolved primarily around the application, by the United States Court of Appeals, of the de minimis defence, an established principle of US copyright law which states that de minimis copying does not amount to infringement of copyright. The de minimis principle is the US version of the principle of copyright law that exists in most jurisdictions which states that copyright infringement will only take place where a substantial portion of the original work is copied.

In Madonna’s case, the court, finding in favour of the pop icon, and in my view rightly so, stated that a general audience would not recognise the brief snippet in Vogue as originating from Love Break and essentially dismissed the plaintiff’s claim.

Whilst the alleged copying in Madonna’s case was, at best, negligible, and, as the court found, not even recognisable, the situation was somewhat different in the case of Robin Thicke and Pharrell Williams’ smash (and fairly risqué) hit “Blurred Lines”. In this case Williams and Thicke were taken to court by Marvin Gaye’s heirs, who claimed that “Blurred Lines” infringed Marvin Gaye’s 1977 hit song, “Got to Give It Up”. Williams and Thicke admit to being inspired by “Got to Give It Up” and Blurred Lines unmistakeably exhibits the same “groove” as Marvin Gaye’s track. In fact, Williams himself is reported as saying “I must have been channelling...that late-‘70’s feeling”. But it is not copyright infringement to write a song with the same “groove” or “feel” as another. There are countless similar-sounding songs. This is not only because musicians build on the past but also because they are creating with a limited musical vocabulary[1]. Once again, the court was called upon to make finding on whether Thicke and Williams were guilty of copying a substantial portion of Marvin Gaye’s song.

Surprisingly, in this instance, the jury found in favour of Gaye’s heirs and Thicke and Williams were ordered to cough up in excess of 7 million dollars in damages. The correctness of this verdict is, however, in my view, questionable.  

Lastly, just days before completing this article, a jury in the case against Led Zeppelin in the United States District Court in California handed down judgment in favour of Led Zeppelin. In this case, the plaintiff filed a suit against Led Zeppelin and its members, claiming that the distinctive guitar intro in their iconic hit song, “Stairway to Heaven” infringed the copyright in a song called “Taurus” by a not-so-famous group called “Spirit”.

This case dealt with a number of fairly technical issues, applicable specifically in the context of US copyright law which allows for the registration of copyright, but in the end the jury found that the riff that Led Zeppelin was accused of copying from Spirit’s song “Taurus” was not intrinsically similar to the intro to “Stairway to Heaven”. One of the interesting points confirmed in this case, though, was that in the absence of direct evidence of copying (which is very rarely available), a case for copyright infringement can still be made out on the basis that the two works are “strikingly similar” In such cases, the plaintiff would have to show that the alleged infringing work is so similar to the prior work that it could not possibly have been the result of independent creation.

In a case that has yet to be decided by the courts, British singer / songwriter Ed Sheeran is being sued by two songwriters who claim that his US Top 10 hit track “Photograph” infringes the copyright in a song they wrote for Matt Cardle, an erstwhile winner of The X Factor UK, called “Amazing”.  The plaintiffs, Martin Harrington and Tom Leonard, allege that Sheeran’s “Photograph” is “strikingly similar” to “Amazing” and are claiming a whopping US$20 million in damages and royalties. According to Harrington and Leonard, the choruses of the two songs have 39 identical notes in common and the songs exhibit similar overall structures, melodic rhythms and harmonies. Incidentally, the attorney representing the plaintiffs in this case is the very same attorney that represented Marvin Gaye’s family in their suit against Robin Thicke and Pharrell Williams. Time will tell whether he will be able to maintain his successful track record...

So what do these cases tell us?

From a South African law perspective, the most obvious point is that, in the context of assessing whether copying of a “substantial” part of a work is alleged, these cases reinforce the principle that the assessment is a qualitative rather than a quantitative one, although I am not convinced that application of this principle in other courts would have resulted in the same conclusions reached by the courts in which they were decided.

Another important principle that is reinforced by these cases, but particularly in the Robin Thicke / Pharrell Williams case, is that a person cannot claim copyright in a concept. Copyright can only be claimed, and enforced, in the material expressions of such concepts, although the jury’s verdict in this particular case was, to say the least, surprising.