This article was first published in Australian Intellectual Property Law Bulletin, Volume 25 Issue 6.
A case of déjà vu for American musician, film director and fashion designer Kanye West who has found himself the subject of another copyright infringement claim, this time by unsigned rapper Vincent Peters, professionally known as Vince P.1 Vince P alleged that West copied portions of his song "Stronger", infringing his copyright in his song of the same name.
Last October, blues and soul musician Syl Johnson sued West and Jay-Z for sampling his 1967 hit "Different Strokes" on the track, "The Joy," without permission, payment or credit.2 The parties settled the infringement outside of court.
Unlike Johnson, Vince P's action led to no avail both in the United States District Court3 and the US Court of Appeals for the 7th Circuit.4 It was found that the two songs were not similar enough to support a finding that copyright infringement occurred. A key difference between Johnson's action and Vince P's action is that Johnson's vocals featured on the Kanye West track.
Take away tips
In 2006, after writing and recording the song "Stronger" (Stronger (VP)), Vince P sent it to John Monopoly, business manager and close friend of Kanye West. Vince P secured a meeting with Monopoly where he again played his recording. Monopoly was apparently impressed and agreed to be Vince P's producer, so long as Vince P was funded by a record label. The funding never materialised and resulted in the same for the proposed collaboration. Less than a year after the meeting between Vince P and Monopoly, West released a song entitled "Stronger" ("Stronger (KW)"). This was a huge hit which sold over three million copies and even earned West a Grammy. Besides sampling from Daft Punk's "Harder Better Faster", it features a hook (refrain or chorus) that repeats German philosopher Friedrich Nietzsche's maxim, "What does not kill me, makes me stronger". According to Vince P, West's song also contained several infringing similarities to his 2006 song. Vince P also noticed that Monopoly was listed as a manager on West's album on which Stronger (KW) appears.
After failed attempts to contact West, Vince P formally registered his copyright in Stronger (VP) with the US Copyright Office. He then sued West in the US District Court for the Northern District of Illinois. The court dismissed the complaint for a failure to state a claim on which relief can be granted, on the finding that the two songs were not similar for a copyright infringement. The District Court decision recently affirmed by the Court of Appeals.
Court of Appeals decision
Vince P's claim that Stronger (KW) infringed his valid copyright in Stronger (VP) was made on the basis that:
- the hooks of both songs derive from the same common maxim and that they implement similar rhyme schemes;
- the songs' shared title; and
- the references to the British supermodel Kate Moss, who is not usually featured in rap or hip-hop lyrics.
In the US, proving infringement of a copyright owner's exclusive right requires proof of (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.5 As Vince P had a valid copyright registration, he was able to show his ownership in the whole of the lyrics to his song. This was not disputed by West. However, whether the parts of Vince P's song that West allegedly copied are, on their own, entitled to copyright protection is a separate question. In the absence of direct evidence of copying, a plaintiff may prove copying by showing that the defendant (1) had the opportunity to copy the original and (2) the two works are "substantially similar". The court easily inferred that West had the opportunity to copy Stronger (VP) where he had a close relationship with Monopoly who had had access to Vince P's song. However, the hurdle in Vince P's case was proving whether West actually copied his work and whether the two songs were "substantially similar".
Vince P argued that West copied the lyrics of his song, with the two hooks being a focus of his complaint.
|Stronger (KW) [Hook]||Stronger (VP) [Hook]|
The hooks of both songs and the songs' shared title derive from Nietzsche's phrase "what does not kill me, makes me stronger". However, as West noted, the aphorism has been repeatedly invoked in song lyrics over the past century. Justice Wood even commented that Kelly Clarkson's song "Stronger (What Doesn't Kill You)" shares this key feature with both West's and Vince P's songs. The court held that the lack of originality of the allusion suggested that West's title and lyric do not infringe on Vince P's song.
Vince P also claimed that West's song infringed on the rhyme pattern he used in his hook. However, the court quickly dismissed this argument stating that copyright protects actual expression, not methods of expression. In any event, a close examination of the rhyming structure of both songs shows that they are in fact different.
Finally, 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 rebutted his argument, saying the lines are completely different. Vince P's reference is "Trying to get a model chick like Kate Moss", and West's reference is "You could be my black Kate Moss tonight". Secondly, the court said that analogising to models as a shorthand for beauty is commonplace for our society and the particular selection of Kate Moss, who is famous in her own right, adds little to the creative choice. Finally, the name alone cannot constitute protectable expression. It was for these reasons that the court affirmed the District Court's decision that Vince P's claim for copyright infringement failed.
Application to Australia
In an Australian context, copyright would subsist in the whole of the lyrics of Stronger (VP). Registration is not required or indeed, available. However, Vince P claimed copyright in parts of his song, that is, the use of Nietzsche's maxim, rhyme scheme, the songs' shared title and the reference to Kate Moss. Whether copyright subsists in these parts is a separate question to the whole of the song lyrics.
Generally, in Australia, single words, short phrases and titles are considered too trivial and insubstantial to attract copyright protection as a literary work.6 This case, if brought in an Australian court, would likely have been dismissed at a preliminary stage on that basis. Even if it was not, and copyright was held to subsist in these fragments of the lyrics, the lack of originality of the parts of Stronger (VP) in which copyright was claimed would likely lead to an outcome similar to that in this case.
1 P Macaskill "Kanye West wins copyright battle" The New Lawyer 29 August 2012 available at www.thenewlawyer.com.au.
2 Johnson et al v West et al, 1:2011cv07276, (ND Ill Oct 14, 2011).
3 Peters v West et al, No 10 C 3951, Slip Op (ND Ill Mar 3, 2012) (Kendall J).
4 Peters v West et al, No 11-1708, (7th Cir Aug 20, 2012) (Easterbrook CJ, Bauer J, Wood J).
5 Federal Rules of Civil Procedure, Rule 12(b)(6).
6 Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd (2010) 189 FCR 109; 272 ALR 547;  FCA 984 ; BC201006524.
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