American country music duo the Bellamy Brothers are reportedly considering suing Britney Spears, arguing that her new song “Hold It Against Me” infringes copyright in their 1979 Tex-Mex hit “If I Said You Have A Beautiful Body Would You Hold It Against Me”.
The two songs have virtually nothing in common from a musical perspective (but don’t take our word for it – feel free to check out both songs here). The Bellamy Brothers’ lyrics are suitably country: “Now rain can fall soft against the window / the sun can shine so bright up in the sky / but daddy always told me ‘don’t make small talk’ / he said ‘come on out and say what’s on your mind.” They could learn a thing or two from Britney: “Gimme something good / Don’t wanna wait I want it now / Pop it like a hood / And show me how you work it out”.
The only thing in common between the songs is part of one of their lyrics. The Bellamy Brothers croon “if I said you have a beautiful body would you hold it against me?”. Britney’s lyrics are “if I said I want your body now / Would you hold it against me?”
The Bellamy Brothers are unlikely to be able to sue in relation to the title of their song. A phrase cannot generally attract copyright protection – probably because, since the phrase is so brief, its idea is inseparable from its expression. The same is true of song titles (“The Man Who Broke The Bank At Monte Carlo” – Francis, Day & Hunter Ltd v Twentieth Century Fox Ltd  AC 112) and newspaper headlines (though see the recent UK decision to the contrary we blogged about here).
That leaves a potential action for infringement of a substantial part of the Bellamy Brothers’ lyrics, which could only succeed if the Court finds that Britney has taken a “substantial part” of the work.
The Federal Court has held that even if a headline-article combination in a newspaper constituted a single work (which it does not), it may not be sufficiently “substantial” to attract copyright protection in its own right. The same analysis may apply to the phrase “would you hold it against me” – a common and oft-repeated colloquialism.
On the other hand, even a small portion of a work may be “substantial” if it is an “essential”, “vital” or “material” part – a lesson that Men at Work recently learned the hard way. Four lines from a 32 line poem, a few bars from a musical work and 10 seconds from a broadcast, have all been held infringing.
Here’s what we think. The lyric “would you hold it against me” requires the preceding phrase “if I said I want your body now” to conjure up the Bellamy Brothers song – otherwise it is merely a derivative colloquialism. But the Bellamy Brothers’ lyrics begin instead with “if I said you have a beautiful body”. Whilst the idea is common to both songs, the form is not – so there is no copyright infringement.
Having said that, it’s a close call and a court just might reach the opposite view. Litigation is notoriously uncertain, and Britney might be willing to part with some cash to make the whole thing go away quietly.
Or she might enjoy the additional publicity. Would you hold it against her?