And if there comes a time
Guns and gates no longer hold you in
And if you're free to make a choice
Just look towards the west and find a friend

So sang Elton John way back in 1985, in his hit song Nikita. Those of you who are old enough to remember, will know that Nikita was a Cold War love song, which told the sad tale of a Western man who falls in love with a female East German border guard who he can see but never talk to. The singer had considerable prescience - a mere four years later the Berlin Wall came down, which meant that the lovely Nikita indeed became free to make a choice. But did Elton John also foresee that he would be sued for copyright infringement many years later?

SA-based photographer, Guy Hobbs, made the news earlier this year when he announced that he would be suing Elton John. His story was an interesting one. In 1982 Hobbs was working on a Russian cruise ship and he fell in love with a Ukrainian waitress. But the political realities of the time meant that the relationship could not survive the sea journey. So Hobbs penned the words of a love song called Natasha, which dealt with the fact that the Cold War made it impossible for someone from the West to have a relationship with someone from the Soviet Union. Hobbs sent the lyrics to a number of publishing firms, including one that represented Elton John and his songwriter, Bernie Taupin. No one showed the slightest interest.

In 1985 Elton John released Nikita and it was a worldwide hit – it went to number three in the UK charts, and number seven in the USA. For reasons that aren't entirely clear, Hobbs never really concentrated on the words of Elton John's song until 2001, when he saw them in print and decided that they were suspiciously close to the words of his song Natasha. For the next ten years he negotiated with Elton John with a view to getting compensation. But when no offer was forthcoming he sued for copyright infringement in a US court.

Hobbs pointed to a number of similarities:  both songs deal with unrequited or unfulfilled love in the Cold War era; both describe a woman's pale eyes; both refer to unanswered letters sent by the man to the woman; the song titles are similar; in both songs the song title is repeated four times in the chorus, and combined with the expressions 'You will never know', 'To hold you' and 'I need you'.

The US court rejected Hobbs' claim. Why? Well it said that the songs did not share any unique features. What they did share was features that are either incapable of protection or too clichéd to warrant protection: the theme of Cold War love; the concept of unanswered correspondence; generic phrases; the repetition of the song title in the chorus. And, said the court, there were differences - in Natasha the two meet whereas in Nikita they never do, and in Natasha the man is upset because the woman doesn't return his Valentine's Card, whereas in Nikita the man doesn't know if she has ever received the letters he's sent. And finally, the court held that the fact that the song titles are similar was irrelevant because song titles do not enjoy copyright.

The case was decided in the USA and US copyright law is not quite the same as ours. Yet the case does highlight a number of copyright issues that are relevant to our law.  First, it's worth knowing that although in our Copyright Act musical works are protected as a specific category of works, lyrics are protected as literary (written) works, and they enjoy protection from various things including unauthorised reproduction (copying) and adaptation.

Second, it's often said that in order to enjoy copyright protection a work must be original. Yet to be original for copyright purposes, a work does not need to be clever or creative. Rather, it simply needs to have been the product of the creator's own endeavours, in other words it must not have been copied. The result of this is that some pretty ordinary works – be they written, artistic or musical – enjoy copyright. Yet, confusingly, there is also a requirement that a work must have a certain amount of substance in order to enjoy copyright. There was, for example, a case where a court held that the layout of pages for a diary was too commonplace and insufficiently substantial to enjoy copyright, and another where a court held that the song title The Man Who Broke The Bank Of Monte Carlo was insufficiently substantial. So ordinary may be OK, but totally banal is not!

Third, although banalities may not enjoy protection, it is conceivable that a collection of them might. This is, in fact, what Hobbs argues – yes the individual phrases may not enjoy protection, but the collection of them in one song does. Certainly there is some authority for this – in one famous UK case the court held that a compilation of facts can enjoy copyright, and said this: 'In deciding therefore whether work in the nature of a compilation is original, it is wrong to start by considering individual parts of it apart from the whole... many compilations have nothing original in their parts, yet the sum total of the compilation may be original.'  This case has been followed here.

Fourth, copyright lawyers often speak of the idea/expression dichotomy, which means that copyright law does not protect the underlying idea but rather the expression of that idea. So, for example, a theme will not be protected, but the expression of that theme – in a story or a song – will be. But it's not always easy to draw a clear line between the expression and the idea.

Finally, copyright infringement requires actual copying – copyright is not an absolute right, which means that if two people coincidentally come up with the same thing, there's no infringement. But copying is, by its very nature, difficult to prove – what are the chances that you will actually see someone copying your work? The courts recognise this and they will therefore look at the probabilities and accept circumstantial evidence. So, for example, if there are marked similarities between two works, and it's clear that the alleged copier had access to the earlier work, a court will generally infer that copying took place.

Copyright's complex, but it's also interesting!

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