Copyright infringement can be found even without the exact reproduction of the protected work. It can result from an imitation of this work, even if this imitation is an inspiration from a distant memory from childhood. We may no longer remember where it comes from and trace its origin, but the latter can trace us. That's what happened to a musician and his song Chérie ma pitoune (which we freely translated into "Darling, my Doll").
The musician and plaintiff Marc Labelle composed and recorded the song Chérie ma pitoune in the early 1990s. He himself was inspired by a 1970s song by one of his friends, who assigned his rights to Mr. Labelle. Mr. Labelle reworked it substantially to create a new song, which was broadcasted by local radio stations in la Beauce, in the southeastern part of Quebec.
In 2015, Mr. Labelle was informed of this new song bearing the same title as his own, recorded by the band Les Batteux Slaques, of which the defendant, Mr. Pierre-Luc Brillant, is a member, and available on an album for sale. The defendant even registered his song with SOCAN. According to Mr. Labelle, this new song essentially reproduces his own song and infringes on his copyright. He therefore contacted the defendant, who replied that he was inspired by an old song whose author he could not place. He also asked that the applicant prove his claims. That said, he nevertheless stopped the broadcasting of his song and requested the removal of the song from SOCAN’s catalog.
Not satisfied, the plaintiff claimed $10,000 in damages from the defendant. In response, the defendant, through his agent, affirmed that he only wanted to pay tribute to the creator of the original song. The court analyzed both songs, and "recognized" the defendant's song within the song of the plaintiff: the chorus is musically almost the same, the lyrics are alike, the verses have important similarities and the title is identical. In short, the (translation) "similarity is striking".
Further, the defendant surely had access to the original work, since he acknowledged having traveled by car in the Beauce region when he was a child, listening to local radio. He admitted to being inspired by a song that he frequently heard during his childhood. This song would have remained in his memory. He would then have been strongly inspired to compose his song, thus reproducing a substantial portion of the plaintiff’s song.
The court therefore finds that the plaintiff's work has been infringed. The defendant tried to exonerate himself by arguing that, in seeking to pay tribute to the original work, he could rely on a fair dealing exception for the purpose of research, private study, education, parody or satire. The court rejected this defense, since none of these fair dealings has been proven (and thus implying that "paying tribute" is not covered by these fair dealings) and that in addition the song was exploited commercially.
Although the defendant did not make sufficient checks to trace the author of the original song, the court concludes that he did not act in bad faith. Likewise, he reacted quickly following receipt of the plaintiff's letter, and there is no evidence that he made any income or profit through his song. The court therefore awards the plaintiff damages of $3,000.
If there is one positive outcome arising from this matter, it is that the defendant finally found the original author of his inspiration.