The latest music copyright battle: ‘Seven Nation Army’ vs ‘Toy’

We previously wrote about the long-running copyright dispute concerning ‘Blurred Lines’ and ‘Got To Give It Up’ which culminated in Robin Thicke and Pharrell Williams being ordered by a California Court to pay  $5m (appox. £4m) to the Estate of Marvin Gaye.

We commented at the time that the Blurred Lines judgment made it very difficult to advise musicians on how to avoid infringing the copyright of an earlier artist if the test is now literally as broad as ‘if the piece reminds you of another then there is risk of infringement’.

The latest music copyright battle involves Jack White from the White Stripes, who wrote ‘Seven Nation Army’, and Doron Medalie and Stav Beger, who jointly wrote the ‘Toy’. ‘Toy’ was Israel’s winning entry to the Eurovision Song Contest in 2018, sung by Netta Barzilai.

Everything kicked off when Universal Music Studios sent a letter before action to Medalie and Beger last year claiming that ‘Toy’ was copied from ‘Seven Nation Army’. This raised a serious problem for Israel because it is due to host this year’s Eurovision Song Content in Tel Aviv in May. If the claim of copyright infringement was ultimately upheld, Israel could have been stripped of its 2018 win (because only original songs are eligible to be performed at the Eurovision) and consequently Israel could have lost its hosting rights for 2019.

The matter was ultimately resolved by Medalie and Beger agreeing to give Universal distribution rights for ‘Toy’ in certain countries and by White being credited as a composer of ‘Toy’  on the Society of Authors, Composers and Music Publishers in Israel (ACUM) website, along with Medalie and Beger.

Whilst Israel will be happy that this matter is resolved, and it can get on with hosting the Eurovision Song Contest in May, it is disappointing that the courts have been deprived of the opportunity to answer the central question: did ‘Toy’ did in fact infringe the copyright in ‘Seven Nation Army’?

Listen to this mash-up and decide …

What now?

The take-away point, it seems to me, is that the threshold for establishing infringement of copyright in music has changed significantly in recent years, in the US at least, potentially introducing serious uncertainty for creators of new music.

In England, the test continues to be that, in order to establish copyright infringement, the claimant must establish that the defendant has taken ‘the whole or a substantial part’ of the claimant’s original work (where the ‘substantial part’ question involves both a qualitative and a quantitative assessment of the ‘part’ taken by the defendant).

If this case were to be decided under English law, it is unlikely that a court would find that a ‘substantial part’ of ‘Seven Nation Army’ had been incorporated into ‘Toy’ in my view.

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