On a Saturday night in September, I took my wife to the first ever “Call of Duty” convention, hosted by Activision Blizzard inside a hangar on the old airfield where Howard Hughes built the Spruce Goose. Did I tell her ahead of time that I was taking her to a nerd convention where the only food available would be burgers and fries from a recreated fictional in-game restaurant called “Burger Town?” No way! I told her I was taking her to a Kanye West concert! Which was kind of true.Kanye was the “big performance” at the end of the geekfest (which explains why increasingly better looking people started showing up as time went by). Unfortunately, even Kanye’s harem of near-naked dancers could not distract from the utter awfulness of Kanye’s performance. Worst. Concert. Ever. (And yes, he did have an I-am-a-Greek-god theme going on in the background.)
Since that disaster of a concert, Kanye (or “Ye” as he is [unfortunately] sometimes referred to by fans) has been fighting two lawsuits (unrelated to said disaster of a concert, but no promises I don’t start a class action lawsuit out of that one) — one that alleges that he stole ideas for his hit song “Stronger,” and one that alleges he used a sample from Syl Johnson’s song “Different Strokes,” without permission, for Kanye and Jay-Z’s album, “Watch the Throne.” These cases are interesting to look at side-by-side because, while both cases deal with copyright issues, one case involves (allegedly) copied lyrics while the other case involves (allegedly) copied sound. And in the sometimes confounding world of copyright law, that could actually make a huge difference.
The “Stronger” Lawsuit (Copying Lyrics)
The “Stronger” lawsuit was actually filed against Kanye last year by a Virginia man named Vincent Peters who claims that Kanye copied elements of his song, also called “Stronger.” In addition to sharing the same title, both songs made reference to Kate Moss and had similar hooks:
Earlier this year, the court dismissed the case on the grounds that the songs were not substantially similar, specifically finding that: (1) titles by themselves are not copyrightable; (2) the reference to Kate Moss in each song was an unprotectable fact; and (3) the use of the maxim, “that which does not kill us makes us stronger,” in the hook of each song, was not original to either artist, but instead is attributable to the German philosopher Friedrich Nietszche who wrote, Was mich nicht umbringt macht mich starker. (Try saying that five times fast).
On appeal, Kanye’s lawyers are arguing more of the same — that not only is there no substantial similarity, but even if there was, Vincent Peters’ lyrics simply aren’t original enough to warrant copyright protection. Which may well be true, even without having to rely on controversial nineteenth century German philosophers to make the point (even if that is, I’m sure, one of the rap world’s favorite go-to arguments when it comes to [allegedly] stolen jams): neither song has terribly original lyrics. Smart money is on Kanye.
The “Watch the Throne” Lawsuit (Copying Sound Recordings)
More recently, Kanye was sued by successful blues/soul musician Syl Johnson, who claims that Kanye and Jay-Z sampled his 1967 song “Different Strokes” without permission. (A number of websites exist where you can listen to both songs side-by-side and judge for yourself.) Although “Different Strokes” has been sampled dozens of times by hip-hop and rock artists alike, those samples were licensed.
Much like Lindsay Lohan, the law on sampling sound recordings without permission is a fascinating mess. In a famous 2005 Sixth Circuit case called Bridgeport Music, Inc. v. Dimension Films, a defendant sampled a two-second snippet of the plaintiffs copyrighted guitar solo, lowered and extended its pitch, and looped the snippet at five places throughout the background of his own song. The district court held that, although the sampled portion may have been important to the plaintiffs work, it would not be recognized by a lay observer, let alone an observer familiar with the plaintiffs work and was therefore not “substantially similar.” (A decision which probably made self-important audiophiles everywhere claim they could have noticed the sample.) But the Sixth Circuit reversed the district court’s decision, creating a bright-line rule for sound recordings that is far stricter than the “substantial similarity” test that governs most other instances of alleged copyright infringement: “Get a license or do not sample.”
The Sixth Circuit’s bright-line rule has not been universally followed. For example, in a famous 2009 case called Saregama India Ltd. v. Mosley, a district court in Florida decided that under Eleventh Circuit law, it should stick to the “substantially similar” test that applies to copyright infringement cases in general and not create an exception for sound recordings (a small judicial middle finger which I’m sure caused quite a tizzy at that year’s judicial conferences). In that case, the defendant sampled a one-second snippet of a female vocal performance from the plaintiff’s song, which was otherwise completely different. In that case, the court found that no reasonable jury could conclude that the works were substantially similar and dismissed the plaintiff’s case.
In Kanye’s case, the major issue is whether Syl Johnson’s song is under copyright protection at all due to technicalities that are exceedingly boring (and whenever a legal issue is that boring, we usually just wind up linking here…although it is worth noting that Johnson just lost a case against Cypress Hill for this exact reason). But if Johnson can overcome those technical problems, then he has a very good case. If the court applies the Sixth Circuit’s bright-line test, and it is factually true that Kanye sampled “Different Strokes,” then the case is basically already over. And even if the Seventh Circuit (where Johnson’s lawsuit is being heard) applies the Eleventh Circuit’s more conventional “substantial similarity” test, Kanye took a substantial chunk of Johnson’s song, and it is quite possible that a jury could conclude that there is substantial similarity.
Kinda makes me want to sing: “Wake up Mr. West!” (another ‘Ye song which samples — with permission — Natalie Cole’s, “Someone That I Used to Love”).