Peter Marx March 6 2008 International Stars in Plagiarism Case - Sound Familiar? Marx Van Ranst Vermeersch & Partners | Tech, Data, Telecoms & Media - Belgium Peter Marx Tech, Data, Telecoms & Media FactsSimilarity and PlagiarismDecisionCommentOn September 4 2007 the Brussels Court of Appeal ruled that the song "You Are Not Alone", created by singer-songwriter and producer R Kelly and performed by Michael Jackson in 1995, was plagiarized from the song "If We Could Start All Over" by the Belgian songwriters Eddy and Danny van Passel in 1993.FactsAfter the internal committee of the Belgian Society of Authors, Composers and Publishers (SABAM) found strong similarities between both melodies, the Van Passels applied to the Court of Leuven for an injunction against R Kelly and Zomba Record Holding Holland BV to prohibit the further exploitation of "You Are Not Alone".On January 20 2003 the court rejected the claim. It calculated that the melodic similarity of the works was 43.46% and held that this degree of similarity could be mere coincidence.The Belgian duo appealed to Brussels Court of Appeal.Although the court acknowledged that the score of "If We Could Start All Over", as filed with SABAM in 1993, was limited to a melody, without information on harmony, rhythm or timbre, the court decided that the score should be deemed to be protected by copyright, as it was an original work that resulted from the creators' intellectual efforts and bore the stamp of their creative personality. The court also emphasized that the copying of part of a protected work can be considered plagiarism if the part in question is original.The court analyzed the conflicting reports of various musicologists, but stressed that the question should not be determined solely on the opinion of music experts; rather, special attention should be given to the experience of listening to the recorded works being played.The court concluded that there was almost no difference between the melodies of the two songs.Similarity and PlagiarismBelgian case law and doctrine provide that similarities between works can be found to be plagiaristic, regardless of whether the original elements of the older work are reproduced intentionally or unintentionally.If a creator can prove that his or her composition pre-dates another and that the newer work contains original elements that can be found in the older composition, the new song is presumed to have been copied from the old song. The burden of proof shifts to the composer of the new work - Kelly in this case - who must show that the elements were not copied. The burden of proof necessarily relates to the question of whether the composer of the new work had access to the older work.Kelly stated that he could not be guilty of plagiarism, as he had never met the Van Passels and had no knowledge of their earlier work. He claimed that any similarity between the works was due not to copying, but to coincidence.DecisionThe court found that Kelly had failed to support his statement. Kelly provided the court only with a copy of the final score of his work as registered in August 1995. The court found that the registered score, containing all of the melodic, harmonic and rhythmic information for the song, must have been the result of a creative process and must have taken time to create. Working documents, digital data or other information relating to the creative process might have demonstrated that Kelly had composed an original musical work and had not infringed the Van Passels' rights.The court also observed that it was reasonable to assume that Kelly had had access to "If We Could Start All Over", observing that 21 months elapsed between the registration of the score of the earlier work with SABAM and the public release of "You Are Not Alone" in June 1995.Although "If We Could Start All Over" has never been commercially released, the court found that it was plausible that the creators “did not create their work merely in order to register it with SABAM and put it in a drawer, but at least informed third parties of the existence of their composition”.However, the decision provides no information on how the Van Passels' work was made public (eg, at concerts or on radio or television), nor does it confirm that the work was recorded in any medium or that the score was commercialized.The court ruled that "You Are Not Alone" plagiarized the earlier work. It upheld the Belgian songwriters' original claim, ordering that Kelly's song be banned from broadcast and withdrawn from all commercial outlets in Belgium. Vendors which fail to comply face a fine of €1,000 for each copy of the song.CommentAfter a 12-year legal battle, the Van Passels have gained recognition for their work - but only in Belgium.This ruling is the second in under two years to involve plagiarism and an international star. On November 18 2005 the Mons Court of First Instance held that Madonna’s song "Frozen" contained elements of an earlier work by a Belgian composer and that Madonna had been able to access the earlier work (for further details please see "Madonna Frozen Out in Plagiarism Case").For further information on this topic please contact Peter Marx at Marx Van Ranst Vermeersch & Partners by telephone (+32 2 285 01 00) or by fax (+32 2 230 33 39) or by email ([email protected]).