Elton John’s “Nikita” Didn’t Infringe Copyright In Earlier Cold War Love Song

Elton John song found not to infringe copyright.
Elton John live concert in Minsk, Belarus, June 2010.
Source: Depositphotos.com

A federal judge in Chicago, Illinois held that the 1985 hit song by Elton John titled “Nikita” did not infringe the copyright in an earlier song that, like “Nikita,” lamented the obstacles to love between a Western man and a woman in the Eastern Bloc during the Cold War. Hobbs v. John, No. 12 C 3117 (N.D. Ill. Oct. 29, 2012).

PLAINTIFF’S SONG “NATASHA.” The plaintiff, Guy Hobbs, is a photojournalist. In 1982, Hobbs had a love affair with a Ukranian woman when he served as a photographer on board a Russian cruise ship. Inspired by that relationship, Hobbs wrote a song he called “Natasha,” about “an impossible love affair between a Western man and a Ukrainian woman during the Cold War.” In 1983, Hobbs registered his copyright of “Natasha.” He forwarded the lyrics to several music publishers, including Big Pig Music, Ltd., a joint venture between Elton John and songwriter Bernie Taupin. None of the publishers took up Hobbs’s song.

Elton John's song found not to infringe copyright.
Actress Anya Major as the title character in the music video for Elton John’s “Nikita.”

ELTON JOHN’S “NIKITA.” In 1985, Big Pig Music registered the copyright in “Nikita,” a song identified as co-written by John and Taupin. “Nikita” is the story of a man’s infatuation with a beautiful East German border guard whom he cannot meet because he may not enter the country. “Nikita” was released on Elton John’s Ice on Fire album and rose to #7 on the U.S. music charts and #3 in the United Kingdom.

PLAINTIFF’S CLAIMS. Hobbs did not read the lyrics of “Nikita” until 2001. When he did, he purportedly “was shocked by the similarities between the lyrics of ‘Nikita’ and ‘Natasha.'” For several years, Hobbes attempted in vain to persuade John, Taupin, and Big Pig Music to compensate him. In 2012,  Hobbs sued all three of them for copyright infringement.

DEFENDANTS’ MOTION. The defendants moved to dismiss Hobbs’s action. Although the statute of limitations for copyright infringement is three years and commences running when the plaintiff learns or should have learned of the infringement, the defendants did not seek dismissal on the ground that Hobbs’s claims were time-barred. Instead, they contended that “Nikita” and “Natasha” were not substantially similar, and thus “Nikita” did not infringe the copyright in “Natasha.” In an opinion dated October 29, 2012, the court agreed with the defendants and dismissed Hobbs’s complaint.

PROVING COPYRIGHT INFRINGEMENT. As explained by the court, to make out a claim of copyright infringement, a plaintiff must establish (1) that he owns a valid copyright and (2) “unauthorized copying of constituent elements of the work that are original.” Peters v. West, 692 F. 3d 629, 632 (7th Cir. 2012). When there is no direct evidence of copying, the plaintiff may prove this element circumstantially by showing that (1) the defendant had access to the copyrighted work and (2) the works are “substantially similar,” so as to permit an inference of copying. Two works are substantially similar if “the accused work is so similar to the plaintiff’s work that an ordinary, reasonable person would conclude that the defendant unlawfully appropriated the plaintiff’s protectible expression by taking material of substance and value.” Incredible Technologies, Inc. v. Virtual Technologies, Inc., 400 F. 3d 1007 (2005).

LIMITATIONS ON COPYRIGHT. Common words and short phrases that do not express an appreciable amount of original text are not protected by the Copyright Act. Moreover, copyright law does not confer exclusive rights as to “any idea, procedure, process, system, method of operation, concept, principle, or discovery … described, explained, illustrated, or embodied in [the copyrighted] work.” 17 U.S.C. § 102(b). In addition, the scènes à faire doctrine prohibits copyright protection for “incidents, characters, or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic.” Therefore, “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.” Bucklew v. Hawkins, Ash, Baptie & Co., LLP, 329 F. 3d 923, 929 (7th Cir. 2003).

ALLEGED SIMILARITIES BETWEEN THE SONGS. Hobbs contended that there were several similarities in the songs’ lyrics indicative of copying, including the following:

  • A theme of impossible love between a Western man and a Communist woman during the Cold War;
  • Both songs describe a woman’s pale eyes;
  • Both songs refer to sending correspondence via mail;
  • Both songs “emphasize a concept of events that never happened;”
  • In the chorus of each song, the title names are repeated four times and then combined with the phrases “You’ll never know,” “you will never know,” “to hold you,” and “I need you;” and
  • The title names “Nikita” and “Natasha” are phonetically similar, and each song’s title name is repeated almost the same number of times.

ABSENCE OF SUBSTANTIAL SIMILARITY. The court concluded that, “viewing these elements in combination, Hobbs has not plausibly alleged that ‘Nikita’ infringes on ‘Natasha,’ because the two works do not share any unique features that give rise to a breach of the duty not to copy another’s work.” The court found that, because of the scènes à faire doctrine, the Cold War love affair theme found in both songs was not protectable. According to the court, that theme was common in literary and musical works for decades. Similarly, “the reference to a woman’s light-colored eyes is also too common or clichéd to be protectable expression.” The court determined that the references to postal mail in the two songs were expressed differently: in “Natasha” the lyrics lament that the woman “never sent me a Valentine,” and in “Nikita,” the lyrics ask “do you ever see the letters that I write?” The frequent appearance in both songs of the word “never” and the phrases “to hold you,” “you’ll never know,” and “I need you” was not evidence of copying, the court reasoned, because those terms are “too generic” and commonplace in musical lyrics to constitute copyrightable expression. The phonetic similarity between the names “Natasha” and “Nikita” likewise was of no importance because the titles of literary works are not subject to copyright protection. The fact that the lyrics of each song repeat the title throughout the song merely reflected the nature of contemporary, popular music, in which songs are “relatively short and tend to build on or repeat a basic theme.”

The court also emphasized that the two songs “are different in content and tell different stories.” In particular, the court noted that in “Natasha,” the lovers actually met but were separated when the woman sailed away. In “Nikita,” the lyrics depict the woman behind the wires of the Berlin wall, under the watchful eyes of border guards; in this song, the man and woman never meet. “Therefore,” the court concluded, “even assuming that the elements highlighted by Hobbs are protectable, an ordinary reasonable person would not conclude that defendants unlawfully appropriated Hobbs’s lyrics.”

 by Shawn N. Sullivan, Nov. 3, 2012.

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