South Africa: I Say Natasha, You Say Nikita

Last Updated: 28 November 2012
Article by Rachel Sikwane

Most Read Contributor in South Africa, September 2016

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!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.