“What has been will be again, what has been done will be done again; there is nothing new under the sun.” ~ Ecclesiastes 1:9
Last Friday, August 7, 2015, Judge Ronnie Abrams, of the United States District Court for the Southern District of New York (and sister of TV personality Dan Abrams), issued a ruling that could have reverberations throughout the music industry for years to come.
The plaintiff in the case is New Old Music Group, which owns the copyright to a 1975 composition entitled “Zimba Ku,” recorded by funk band Black Heat. The defendant is famous pop producer Lukasz Gottwald, professionally known as “Dr. Luke.” (Note: Dr. Luke is also currently being sued by pop star Ke$ha for sexual assault and battery and emotional abuse).
The plaintiff is suing Dr. Luke over his use of a “breakbeat” – the looped percussive element of a song – in pop star Jessie J’s hit single entitled “Price Tag.” The plaintiff alleges that the breakbeat in Price Tag was wrongfully copied from “Zimba Ku.”
In response, Dr. Luke filed a motion for summary judgment, arguing that use of the breakbeat was so common that the defendant’s use could not be probative of copying. In fact, the breakbeat is one of the most famous in music history, having been sampled by hip-hop heavyweights such as N.W.A. (whose “Straight Outta Compton” film was released last week), Biz Markie, Kool G. Rap, and Heavy D & the Boyz. Specifically, however, Dr. Luke presented three songs – Thelma Houston’s “Me and Bobby McGee” and The Jackson 5’s “ABC” and “I Will Find A Way” – as prior art.
Judge Abrams disagreed with the defendant’s argument, however, writing that “while many of the individual elements of Zimba Ku may be commonplace, Defendants have not shown that, as a matter of law, the combination of those elements in the drum part is so common as to preclude any reasonable inference of copying."
Finding that a genuine issue of fact exists as to whether Dr. Luke actually copied “Zimba Ku,” Judge Abrams denied Dr. Luke’s motion for summary judgment and the case now moves forward to trial. At issue will be whether: 1) the drumming in Zimba Ku is sufficiently original and creative as to deserve copyright protection, and 2) if so, whether the drumming in Price Tag is sufficiently original and creative as to constitute independent creation.
Considering the popularity of this particular breakbeat, if the court finds in favor of the plaintiff, more lawsuits may be to come.
Stay tuned.
For more information about this case, visit http://www.hollywoodreporter.com/thr-esq/judge-wants-dr-luke-stand-813992. To read Judge Abrams’ ruling in its entirety, visit http://www.scribd.com/doc/273859587/Breakbeat.
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James Woodson Esq.
Social Media Coordinator, Entertainment, Arts, & Sports Law Section
(732)993-8796
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