Friday 24 August 2012

How Nietzsche rescued Kanye West from infringement claim

Kanye feels Stronger after the ruling
US musician/film director/fashion designer Kanye West is well-known not just to gossip lovers (recently because of his relationship with socialite/reality TV star/model/actress Kim Kardashian), but also to copyright aficionados. 
A few months ago this Blog reported news of a copyright infringement claim brought against Kanye and Jay-Z by soul veteran Syl Johnson over 1967 song Different Strokes, which ended up with a settlement between the parties (see here and here).
Now Kanye is back on the copyright scene, with a fresh judgment of the US Court of Appeals for the 7th Circuit (a summary is also available here), which ruled in his favour in an action for copyright infringement brought by music producer Vincent Peters (professionally known as Vince P).
In 2006, Vince P wrote, recorded, and distributed a song entitled Stronger. The song’s title comes from a key line in its hook (refrain or chorus).
As recalled by Justice Wood, who delivered the Opinion of the Court, the line draws from Friedrich Nietzsche’s quote from his 1889 Twilightof the Idols: “What does not kill me, makes me stronger.”
German philosopher Nietzsche
After writing this song (which describes the competitive nature of the hip-hop and rap world), Vince P sent it to producer John Monopoly, a close friend and producer to Kanye West. Monopoly was apparently impressed with Vince P's work and agreed to be his producer. Eventually, however, the proposed collaboration foundered.
As it often happens in these cases, shortly thereafter (in 2007), Kanye West released a song entitled ... Stronger. This, besides sampling from electronic duo Daft Punk's Harder Better Faster, features a hook that repeats Nietzsche's quote and, according to Vince P, other suspicious similarities. West's song was very successful: it earned the No 1 spot in several Billboard charts, the single sold over three million copies, and it eventually earned West a Grammy for Best Rap Solo Performance.
Following unsuccessful attempts to contact West, Vince P thought of first registering his own version of Stronger with the US Copyright Office [as recalled by the Court, copyright registration, while not jurisdictional, is a substantive requirement of infringement litigation] and then filed a lawsuit against West.
Both the District Court and the Court of Appeal dismissed Vince P's claim, holding that the two songs were not similar enough to support a valid claim of copyright infringement.
The findings of the Court
As recalled by Justice Wood, proving infringement of a copyright owner’s exclusive right under 17 USC §106(1) (the reproduction right) requires evidence of
(1) ownership of a valid copyright, and
(2) copying of constituent elements of the work that are original.
Vince P succeeded in providing prima facie evidence of his ownership in the whole of the lyrics to his song. Thus, the Court turned its attention to the question of copying. 
"The standard for copying is surprisingly muddled", pointed out the Court. Where direct evidence - such as an admission of copying - is not available, a plaintiff may prove copying by showing that:
(a) the defendant had the opportunity to copy the original (often called “access”) and
(b) the two works are “substantially similar” [and similarities concern protectable elements].
Because of Monopoly, West had an opportunity to copy Vince P's song. Therefore, the question was whether he actually did that and, if so, to what extent. 
Substantial similarity
What "substantial similarity" is about?
(photo by Diane Arbus)
To address this issue, the Court first reviewed the differences among the Circuits about the relation between proof of access and evidence of similarity, and then considered whether the similarities alleged by Vince P sustained a valid claim of infringement.
Three features of Kanye West's Stronger formed the basis of Vince P’s argument that West’s song infringed his:
(i) First, he noted that the hooks of both songs derive from the same common maxim and that they implement similar rhyme schemes (stronger, wronger, etc).
(ii) Second, he pointed to the songs’ shared title, which again derives from Nietzsche.
(iii) Finally, he noted that both songs contain “incongruous” references to the UK model Kate Moss, who is not usually featured in rap or hip-hop lyrics.
(i) and (ii): Nietzsche’s quote, rhyme schemes and title
Despite the fact that both songs quote from a 19th century German philosopher might, at first blush, seem to be an unusual coincidence, West correctly noted that the aphorism has been repeatedly invoked in song lyrics over the past century (if you don't believe it, watch this YouTube video here). Therefore, neither the Nietzsche's quote nor the title (which was also used by Britney Spears) led to a finding of infringement.
As to Vince P's claim that West’s song infringes on the rhyme pattern he used in the hook, the Court recalled that copyright protects actual expression, not methods of expression. Therefore Vince P could not claim copyright over a tercet. 
Reference to Kate Moss as paragon of 
female beauty is a trite one, 
held the Court
(iii): Kate Moss
Coming to the songs’ references to Kate Moss, in Vince P’s song, the line is “Trying to get a model chick like Kate Moss”; in West’s it is “You could be my black Kate Moss tonight.
Vince P argued that his lyrical reference to Kate Moss “as a paragon of female beauty” is so unique as to “undermine the possibility of coincidental similarity.”
The Court rejected this view and held that, in the first place, the lines are entirely different. In the second, analogising to models as a shorthand for beauty is commonplace in our society. The particular selection of Kate Moss, who is very famous in her own right, added little to the creative choice. 

Having examined all these issues, the Court dismissed Vince P’s claim as unfounded. This blogger thinks that the judgment sounds about right. It can be said that Vince P's claim failed over lack of originality of the parts of the song  Kanye West allegedly copied from his version of Stronger. As commented in the FindLaw Blog, "You don't hear Nietzsche's ghost whining about everyone ripping him off. That's because - as the lyrics of the song you copyrighted would suggest - what doesn't kill you makes you stronger."

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