Bieber Fever running high, “is it too late now to say I’m SORRY?” – allegations of copyright infringement against The Biebs (aka Justin Bieber)
Indie artist, Casey Dienel, who goes by the name of “White Hinterland”, is suing Justin Bieber and producer, Skrillex (as well as the other songwriters) for alleged copyright infringement in relation to Bieber’s hit and annoyingly catchy song “Sorry” (you know the song where The Biebs is singing about Selena Gomez – you can listen to it here).
Dienel claims that “Sorry” copies her song “Ring the Bell” – listen to that one here. You only have to listen to the first 15 seconds of “Ring the Bell” to hear the vocal riff that Dienel is relying on. Check out her Facebook rant below:
Copyright infringement in music
Copyright infringement claims commonly arise in the music industry. Recent examples of artists allegedly infringing another artist’ copyright include:
- Robin Thicke and Pharrell Williams – “Blurred Lines” (which copied Marvin Gaye’s Got to Give It Up” – Thicke and Williams were ordered to pay $7 million, ouch!); and
- Ed Sheeran – “Photograph” (which allegedly copies X-Factor winner, Matt Cardle’s “Amazing”. Cardle is suing for $20 million!)
Copyright infringement claims can also arise when an artist “samples” another piece of music, without the copyright owner’s permission.
Sampling is when artists take a portion of one sound recording and use it in another musical composition (e.g. to create a remix or other derivative work). It is common music practice and it has been the subject of much controversy over the years. Some other celebrities involved in alleged copyright infringement for “sampling” another artists’ music include:
- MC Hammer – “U Can’t Touch This” (which sampled Rick James’ song “Super Freak” – settled outside of court; and
- Vanilla Ice – “Ice Ice Baby” (which sampled the bass line of Queen and David Bowie’s “Under Pressure”) – also settled outside of court.
Copyright infringement in Australia
In Australia, there are various elements to copyright protection in a song. The lyrics could be protected as a literary work, the music could be protected as a musical work and any recorded performances of the song could be protected as sound recordings.
This usually means the person who:
- writes the lyrics owns the copyright in the literary work;
- composed the music owns the copyright in the musical work; and
- the maker of the sound recording owns the copyright in the sound recording.
Ownership of copyright is obviously subject to any agreements which the authors of the lyrics or music have entered into with third parties, such as record companies, in relation to the ownership of copyright.
When it comes to music sampling, which typically involves taking lyrics or a particular melody/sound, producers and artists need to get the copyright owner’s permission to sample the work. This is usually done through a licensing arrangement.
Who can forget the Kookaburra case (Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Ltd (2011) 191 FCR 444) which considered copyright infringement of the iconic Australian tune “Kookaburra Sits in the Old Gum Tree” in Men at Work’s song “Down Under”. In this case, the Full Court held that there was a substantial reproduction of “Kookaburra Sits in the Old Gum Tree”, despite the fact that EMI Songs had inserted an original bar in between the two bars taken from “Kookaburra Sits in the Old Gum Tree” (this was 50% of the Kookaburra song, which only consisted of four bars).
The Court noted that in determining whether a musical work infringes the copyright in another, there are various factors which may be considered, including [at 50]:
- the structure of two works;
- whether particular bars of the copyright work are an essential part of that work, and whether the theme of those bars has been borrowed in the alleged infringing work;
- whether the theme of the copyright work, despite being built up of musical commonplaces or clichés, combines those devices originally;
- whether there is a noticeable correspondence, on a note for note comparison, between the two works;
- whether the harmonic structure of parts of the two works is the same; and
- the importance of time and/or rhythm in each work.
Is the Biebs in trouble?
If this case was considered in Australia, the key issue would be whether The Biebs has taken a “substantial part” of Dienel’s song? “Substantial” doesn’t mean that the infringing part is a large chunk of the original song, it can also be a distinctive or important part of the song (quality over quantity).
Factors in favour of The Biebs
Is the riff a substantial part of the White Hinterland song (see Designers Guild Ltd v Russell Williams (Textiles) Ltd  1 All ER 700 at 708)? I don’t think so. It features most prominently in the first 15 seconds of “Ring the Bell” and then it kind of sounds like it’s in the background a bit for the rest of the song. I don’t think it’s a very catchy element of the song.
Is the riff original or is it commonplace in the music industry? The original vocal riff from Ring the Bell is only 4 notes. Is this enough to claim originality in it?
Factors against The Biebs
The harmonic structure sounds similar, and the timing and rhythm also appears to be similar.
If this case proceeds to trial, both parties would need to get expert witnesses to analyse the chord progressions and notes in the two songs.
Interestingly, Skrillex tweeted a video which shows how the catchy riff in “Sorry” was created. Although it looks pretty convincing, the video doesn’t prove whether the melody in the riff was created independently – without inspiration from White Hinterland’s song.
What should you do if you’re an artist sampling someone else’s music?
If you’re an artist, musician, producer or any sort of musical creative, learn from the Biebs’ mistake and always make sure you always get copyright clearances. Negotiating a licence upfront could be a lot cheaper than paying copyright infringement fines (and damages) in the long run. Copyright infringement can be an expensive mistake.