The Seventh Circuit affirmed on July 17 a judgment of the Northern District of Illinois which had dismissed a copyright infringement suit brought against Elton John over his “Nikita” song by Guy Hobbs, an amateur songwriter.
Hobbs wrote the lyrics of a song, “Natasha,” inspired by a brief relationship he had in the Eighties with a Russian woman while working on a cruise ship. He registered the copyright for the lyrics in the U.K. in 1983, and, in 1984, forwarded the lyrics to be considered for publishing to Big Pig, a music publisher. Neither Big Pig nor any other music publisher ever published these lyrics.
In 2001, Hobbs read for the first time the lyrics of the song “Nikita,” written by Elton John and long-time collaborator Bernie Taupin, which had been copyrighted by Big Pig in 1985. Hobbs contacted the authors of the Nikita song, and since, according to the N.D. of Illinois, “has consistently communicated with [Elton John and Bernie Taupin] and their attorneys demanding compensation for the unauthorized use of his lyrics.”
Hobbs eventually filed suit for copyright infringement in April 2012. On October 29, 2012, the N.D. of Illinois granted defendants’ motion to dismiss in its entirety. Hobbs appealed, but the Seventh Circuit affirmed. Here are a few of the reasons Hobbs was not successful.
Titles Not Protected by Copyright
While the titles of both songs, “Nikita” and Natasha,” are somewhat similar, titles are not protected by copyright. The N.D. Court of Illinois had taken care to note that other songs sharing the same titles could be found when searching the Copyright Office’s database. Even if both titles contain a Russian name starting with “N” and ending in “A”, these elements are commonplace.
Ideas Are Not Protected By Copyright
Plaintiff argued in front of the N.D. Court of Illinois that both songs had for theme an impossible love between a Westerner and a Communist woman during the Cold war. But, as noted by the Seventh Circuit, “the Copyright Act does not protect general ideas, but only the particular expression of an idea.” 17 U.S.C. § 102(b) clearly states that “[i]n no case does copyright protection for an original work of authorship extend to any idea…”
The N.D. Court of Illinois had noted that the Cold War love affair has been for decades a common theme in songs, books, and movies. Indeed, if the theme of the western man in love of with a woman living beyond the Iron Curtain could be protected by copyright, French singer Gilbert Bécaud would have prevented all further songs using that theme, when he released his hit, Nathalie, in 1964, complete with an early “video clip” featuring the chanteur visiting Moscow in the company of a guide with almond-shaped pale eyes.
I mention the color of the guide’s eyes in the Bécaud’s clip, as plaintiff in Hobbs argued in front of the N.D. Court of Illinois that “a postal theme” and “references to a woman’s pale eyes” are protected by the Copyright Act. But the court’s lapidary answer was that such themes are “rudimentary, commonplace and standard under the scènes à faire doctrine.”
This is the doctrine under which scenes which “have to be done” are not protected copyright. Such scenes and themes, which are a necessary part of a work, are merely ideas. The Seventh Circuit quoted its own 2003 Bucklew v. Hawkins case, where it explained the doctrine of scènes à faire as meaning that “a copyright owner can’t prove infringement by pointing to features of his work that are found in the defendant’s work as well but that are so rudimentary, commonplace, standard, or unavoidable that they do not serve to distinguish one work within a class of works from another.”
Unique Combination
Even though individual elements were not protectable by copyright, Hobbs argued that the selection, arrangement and protection of these unprotectable elements constituted a “unique combination” which can be protected by copyright. The N.D. Court of Illinois rejected that argument as, in Peters v. West, the Seventh Circuit had held in 2012 that if parts of the works are not protectable by copyright on their own plaintiff cannot claim copyright infringement for the whole work. Hobbs only relied on the “unique combination” theory on appeal. But the Seventh Circuit held that there was not infringement as “even when the allegedly similar elements between the songs are considered in combination, the songs are not substantially similar” and thus the court did not need to decide if plaintiff’s argument was indeed correct.
The Two Songs are Not Similar
Instead, the Seventh Circuit reviewed the case de novo to find out whether both songs were substantially similar, which would then permit to infer that the defendant has copied the original work. When having to rule whether a particular work infringes another one, judges are looking at whether the allegedly infringing work is not substantially similar to the original work, meaning that they “do not share enough unique features to give rise to a breach of the duty not to copy another’s work,”Peters at 633-34.
The Seventh Circuit did not find that the two songs were similar. First,they do not tell the same story. In “Natasha,” the two lovers had a brief romance, but their relationship was doomed because “a Ukraine girl and a UK guy just never stood a chance.” Instead, the “Nikita” song is about a relationship that never could happen because Nikita lives on the other side of the wall, and thus the protagonist of the song “will never know how good it feels to hold [Nikita].”
Also, the expressions used in both songs are not similar. Natasha has “pale blue eyes,” Nikita has “eyes that looked like ice on fire.” Natasha never sent a Valentine to her lover, whereas the singer in Nikita does not know if the letters he sends to Nikita are even received.
Hobbs also contended that both songs used the word “never,”,the phrase “to hold you,” the phrase “I need you” and some form of the phrase “you will never know.” This argument was not conclusive either. As any regular listener of hit parades would know, these phrases were and are used regularly (too regularly? ) in pop songs, and the Seventh Circuit even noted that “[r]epetition is ubiquitous in popular music.”
As the songs were found not “substantially similar,” the Seventh Circuit concluded that there was no copyright infringement.
Image is Love courtesy of Flickr user Alberto Garcia pursuant to a CC BY-SA 2.0 license.
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