On August 8, 2024, All Surface Publishing filed a complaint in the Southern District of New York against Universal Music Group, Mr. 305 Inc. (aka Pitbull), and Paul Edward Blair, publicly known as DJ White Shadow. The complaint alleges copyright infringement of All Surface’s musical work “Samir’s Theme” in the 2021 song “I Feel Good” made by Pitbull and featuring Anthony Watts and DJ White Shadow.
All Surface points out the significant similarities between the two pieces, including an almost identical tempo, similar arrangements, melodic lines, and rhythmic structures. All Surface also allege Samir’s Theme was sent to DJ Shadow White in 2011, where he then commented, “I love this song.” Despite the defendants allegedly having access to “Samir’s Theme” and the similarities listed in the complaint, determining copyright infringement in music is often complex due to the nature of music building upon existing traditions and patterns.
In the Western musical scale, there are only twelve notes. With a finite number of notes, there are a finite number of chords, particularly of chord progressions that are appealing to the human ear. Acclaimed young pop-star Olivia Rodrigo has wisely observed that “nothing in music is ever new. There are four chords in every song. That’s the fun part – trying to make that your own.” Some four chord progressions are incredibly common, such as the “I – V – VI – IV” (or E – B – C minor – A). Songs that use this progression include “Living on a Prayer” by Bon Jovi, “Grenade” by Bruno Mars, “Stay Stay Stay” by Taylor Swift, and “Someone Like You” by Adele. Though all popular and distinct songs, the underlying sequence is the exact same. Just watch the popular video by Australian comedy group Axis of Awesome as they thread more than 30 pop songs together using the same four chords.
To assess if there was copyright infringement or just an inevitable overlap of common rhythmic or melodic patterns, courts apply a two-pronged test:
- Did the alleged infringer have the opportunity to hear the original work?
- Are the two works significantly alike to the ordinary listener?
This current test is highly subjective and has resulted in inconsistent rulings across various jurisdictions. Courts are tasked with the difficult burden of protecting original works without creating a fear-based system that hinders artist’s freedom of expression. Though the allegations in the case involving Pitbull’s record label may seem clear cut, previous copyright infringement cases highlight the complexity of delineating between inspiration, coincidence, tradition, and infringement. Pitbull is only the latest in a string of high profile artists to deal with a copyright infringement lawsuit, joining the company of Katy Perry, Ed Sheeran, and Sam Smith among numerous others.
Mega pop star Katy Perry was originally found liable for copyright infringement for the similarities between her hit “Dark Horse” and Marcus Gray’s “Joyful Noise,” due primarily to the use of a common musical building block known as the ostinato. However, the Ninth Circuit overturned the verdict out of fear the original decision would “suffocat[e] musical creativity” by permitting artists to claim an “improper monopoly” over conventional musical principles. The balance courts face of protecting the rights of creators and fostering musical innovation is only going to become increasingly complex in the digital age as technology reshapes both music creation and analysis.
To protect your musical works from infringing or being infringed upon consider documenting your creative process, acknowledging where you draw influence and aiming for originality. Further, you might obtain professional guidance from both a musicologist and attorney who handles copyright infringement claims.
Whether you’re a musician looking to protect your work or facing an infringement claim, reach out to Griffith Barbee located in Texas to learn more about how our team of intellectual property lawyers can help you understand your rights and options.
