I Gotta Feeling … that I’ve heard that somewhere before

The Black Eyed Peas are a band well known to many people (and certainly this author) for a number of songs including “Where Is The Love?”, “Let’s Get This Party Started”, “I Gotta Feeling” and “Boom Boom Pow”.  Unfortunately for the BEP, “I Gotta Feeling” and “Boom Boom Pow” are now the subject of plagiarism claims in the United States.

The I Gotta Feeling claim has been lodged in the US Federal District Court in Orange County, California, and alleges wilful copyright infringement on the basis that this song copies a song called “Take a Dive” by an artist called Bryan Pringle.

The Boom Boom Pow claim has been lodged in the US Federal District Court in Los Angeles, California, and is the re-filing (by the same law firm as the “I Gotta Feeling” claim) of a January 2010 lawsuit that was previously filed in Chicago in relation to a song called “Boom Dynamite”. Wilful copyright infringement is also alleged, this time on behalf of the fantastically named “Ebony Latrice Batts, aka Phoenix Phenom, and her producer and co-songwriter, Manfred (Manny) Mohr”. 

Each of the claims seeks a permanent injunction restraining public performance of the BEP songs, and an account of profits.  The claims also seek orders that all infringing copies and recordings be impounded, and that the plaintiff songwriter be given songwriting and publishing credits for the relevant BEP song.  The claims then go on to assert a conspiracy to intentionally disregard statutory copyright laws, and hence an unfair business practice under Californian law (although it is unclear what relief is being claimed on this front).  

The basis of the claims is that the BEP songs are, as a whole, substantially similar to the plaintiff songs.  The claims then go on to list specific similarities (12 in the case of I Gotta Feeling, and 13 in the case of Boom Boom Pow), and assert that there is no reasonable, alternate explanation for the similarities apart from unauthorised copying.  The balance of the claims, and they are quite lengthy at 26 pages each, is dedicated to demonstrating a causal link between the plaintiff songs and the alleged copying by BEP, as well setting out (quite agressively) the wrongs that have been done to the plaintiffs.

Plagiarism is, of course, a topical subject in Australian copyright law given the recent decision in the Kookaburra case (we have previously blogged about the result and the allocation of royalties that followed).  The appeal in that case has been reserved by the Full Federal Court, but in the meantime we are left with a result, after weighing quantitative and qualitive factors, that the reproduction of 2 bars of music can constitute an unauthorised reproduction for the purposes of the Copyright Act.

In the fine tradition of IP Whiteboard guinea pigs (see, for example, Natalie’s post on Willy the Wizard vs J K Rowling, and Alexandra’s post on the Hells Angels vs McQueen) , I took it upon myself to listen to the songs side by side (I Gotta Feeling vs Take A Dive, and Boom Boom Pow vs Boom Dynamite).  To my, less than educated, ear, the similarity in the case of I Gotta Feeling is much stronger than the similarity in the case of Boom Boom Pow.  In fact, the I Gotta Feeling similarity is sufficiently strong that I wonder whether there was an express decision to “sample” Take A Dive, as opposed to an inadvertent or incidental motive.

If (and this is a big if) these claims proceed to trial, it will be particularly interesting to read the BEP’s response to the causation story set out by the plaintiffs, and whether the BEP concede that sampling has occurred (given its popularity in this muscial genre), or assert that the similarities between the songs is simply co-incidence.  And, in case you have any doubts about the iconic nature of, and pecuniary benefits associated with, I Gotta Feeling, look no further than the flash mob performance of the song for the launch of Oprah’s 24th season on television, which, for the time being at least, can be found on YouTube.

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