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Boy meets girl. Boy and girl fall in love. Boy and girl can never be together because of the Cold War. It’s a story old as time, or at least that’s what the Northern District of Illinois has recently ruled.
While Sir Elton John may be unhappy to hear the court refer to the lyrics of one of his immortal songs as “common,” that rationale has caused the court to dismiss a lawsuit alleging that John had committed copyright infringement. In April, Guy Hobbs brought suit against John, claiming that John’s 1985 song, “Nikita,” impermissibly stole the lyrics of Hobbs’ unpublished song, “Natasha.” Hobbs had written and copyrighted “Natasha” in the early 1980s after becoming romantically involved with a Ukrainian waitress aboard a Russian cruise ship. The song explains, “A Ukraine girl and a UK guy just never stood a chance.” After several music publishers, including John’s, rejected Hobbs’ lyrics, Hobbs forgot his dreams of musical stardom and returned to his previous career as a photojournalist. In 2001, Hobbs learned of John’s “Nikita” for the first time and ultimately brought suit just this year.
To establish a copyright claim, Hobbs had to demonstrate (1) ownership of a valid copyright, and (2) unauthorized copying of constituent elements of the work that are original. The second prong is fulfilled if a plaintiff can demonstrate (a) that the defendant had access to the original work, and (b) that the two pieces are “substantially similar.” While Hobbs might have established ownership of a valid copyright and John’s access to the lyrics via his music publisher, the court ruled that the two pieces were not substantially similar. Noting some similarities, including a theme of impossible love between a Western man and a Communist woman during the Cold War, descriptions of pale eyes, references to sending mail, and common three-syllable Russian names, among other things, the court dismissed these similarities under the scènes à faire doctrine. This principle states that “incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic” are not protected under copyright law. The court systematically dismissed each alleged similiarity as a theme common to popular music and thus unprotectable.
While the scènes à faire doctrine seems necessary to promote continued creativity, I wonder how expansive the doctrine will become as technology gives a voice to all ideas of aspiring songwriters (good or bad) and makes access to those songs instantaneous. Moreover, while a love affair between a Western man and a Communist woman might have once been a common theme in songs and films of the Cold War era, should it still be considered an “indispensable” or “standard” topic?
Furthermore, one of Hobbs’ argument caught my eye. He alleged that, while the elements of his song may not be protectable individually, the unique combination of these elements creates a protectable work. The court easily rejected this argument, citing the Seventh Circuit for the principle that “if the copied parts are not, on their own, protectable expression, then there can be no claim for infringement of the reproduction right.” Yet, the famed Supreme Court case of Feist Publications v. Rural Telephone Service Co. established that compilations like a telephone book are copyrightable based upon the publisher’s arrangement of the noncopyrightable facts or information. Wouldn’t such an argument be analogous here? While the particular elements of Hobbs’ songs cannot be protected, much like facts in a telephone book, Hobbs’ chosen arrangement of those elements might be protected. The court, of course, might still determine that the two works are not ultimately substantially similar, but I’m not sure Hobbs’ original argument should have been so easily dismissed.
Regardless of my own ponderings, the court’s decision certainly upholds the policies behind the Copyright Act, encouraging free and independent creativity, so break out your pens and start composing the next epic Cold War ballad.
– Erin Reimer
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