South Africa: Get A Hit... Get A Writ

Last Updated: 8 April 2015
Article by Waldo Steyn

Most Read Contributor in South Africa, September 2016

So goes the saying in the US entertainment industry. What it means is this: If you have a successful hit, you may pretty much expect to be sued by someone who will claim that you've infringed their copyright.

Yet, notwithstanding this, cases involving infringement of music copyright are fairly rare. Yes, it's well known that there was an out-of-court settlement after claims were made that Sam Smith's hit single Stay with Me  infringed the copyright in an old Tom Petty song. And, yes a few years back we did write on an interesting case involving Elton John's old hit  Nikita. What happened in that case was that a certain Guy Hobbs sued Elton John for having infringed the copyright in a song that he had written called Natasha, a song that he claimed he had sent to Elton John before the release of Nikita. A US court found against Hobbs, saying that although the two songs shared certain features – such as the themes of a cold war love affair and unanswered correspondence, as well as certain generic phrases and the repetition of the song title in the chorus – these features were too "everyday" to warrant protection.

The really big music copyright story has, of course, been about Blurred Lines. When we  first wrote about it two years ago it was already big news, but it became a great deal bigger recently when a US court found that the mega-hit by Pharrell Williams and Robin Thicke did infringe the copyright in an old song by the late Marvin Gaye called Got to Give it Up. The jury held that Marvin Gaye's heirs were entitled to damages to the tune of US$7.4-million.

The case is interesting because it highlights that there are different copyrights involved with songs. The South African Copyright Act, 1978, for example, gives protection to a "musical work".  The first owner of the copyright in a musical work is "the person who first makes or creates the work" – the songwriter in other words, who may or may not also be the recording artist. The songwriter has the exclusive right to do various things, including the right to reproduce (copy) the work "in any manner or form", as well as the right to make an "adaption of the work".

The Act creates a separate copyright in a "sound recording", which is defined as "any fixation of sounds or signals representing sounds capable of being reproduced". The owner of the copyright in the sound recording is "the person by whom the arrangements for the making of the sound recording were made" – the record company in other words! The owner has the exclusive right to do various things, including "reproduction (copying) in any manner or form" and "making an adaptation of the work".

As the judge in the Blurred Lines  case explained to the jurors, the issue that they had to consider was whether the copyright that the Gaye family had in the sheet music for Got to Give it Up  had been infringed. In other words, whether Pharrel Williams and Robin Thicke had copied notes, sequences and the like. The issue was not whether the sound recording of Got to Give it Up  had been infringed. It's reported that the judge even gave the jury a clear instruction not to listen to Marvin Gaye's sound recording, because the case was not about whether the overall sound ("look and feel", if you will) of the Marvin Gaye sound recording had been copied.

This is interesting because Robin Thicke (even though it eventually transpired that he had in fact played little or no role in the writing the song) had never made any secret of the fact that he and Williams had been inspired by the Marvin Gaye song. He said that Blurred Lines was reminiscent of a particular sound or genre and, in many ways, a tribute to a particular musical era. But, he said, the similarities between the songs were confined to "commonplace musical elements" – a high falsetto voice, vocal and musical layering, and a particular beat. Being inspired by something, he said, is not the same as copying it.

In the end, the case turned very much on expert evidence. Based on the expert evidence that they heard, the jurors disagreed with Robin Thicke and found that actual aspects of the musical work had been copied. Williams and Thicke have responded by saying that the judgment sets a "horrible precedent".  Whether or not it does remains to be seen. My understanding is that the law is pretty much as it was. Which is that there may be certain features that are so common that they cannot be monopolised. But if it can be proven that there has been actual copying of a substantial part of a musical work – and the word "substantial" refers to quality not quantity – then there is an infringement.

The message to songwriters is clear: Don't copy.

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.

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