The U.S. Court of Appeals for the Seventh Circuit affirmed a trial court’s dismissal of copyright infringement claims against rap/hip hop singer Kanye West relating to a song entitled Stronger. Peters v. West, No. 11-1708 (7th Cir. Aug. 20, 2012).
Plaintiff’s Song. In 2006, the plaintiff, Vincent Peters, was a largely unknown musical performer who wrote a song he called Stronger. The title and refrain of the song were taken from Friedrich Nietzsche’s aphorism in the 1888 book Twilight of the Idols: “What does not kill me makes me stronger.” Peters searched for an executive producer who could make him famous. This search led him to John Monopoly, a business manager and friend of Kanye West, one of the leading stars of hip-hop music. Peters sent Monopoly copies of his songs, including Stronger. Apparently impressed with the recordings, Monopoly met with Peters in Chicago, where Peters performed Stronger in Monopoly’s presence. According to Peters, Monopoly agreed to be Peters’s manager, on the condition that Peters secure financial backing for the recording project. Peters’s plan to obtain financial support fell through, and Monopoly did not become Peters’s manager.
Defendant’s Song. In 2007, less than one year after the meeting between Peters and Monopoly, Kanye West released his own song entitled Stronger. Like Peters’s song, the West song made a reference to supermodel Kate Moss and contained a paraphrase of the Nietzsche quotation. To the chagrin of Peters, John Monopoly was listed as West’s manager for the album in which Stronger appeared.
Proceedings in the District Court. Suspecting that West had copied his song from one of the recordings Peters had given Monopoly, Peters registered the copyright in his song with the U.S. Copyright Office and sued West for copyright infringement in the U.S. District for the Northern District of Illinois. The district court dismissed Peters’s suit, and Peters appealed to the Seventh Circuit.
Proving Copying in a Copyright Case. The Seventh Circuit affirmed, finding that Peters had failed adequately to plead that West copied Peters’s song. As explained by the court, West denied having copied Peters’s song. In the absence of direct evidence of unauthorized copying, courts have held that a copying may be inferred where (1) the defendant had access to the copyrighted work and (2) the two works are substantially similar. Although the different federal appellate courts have articulated this test in a variety of ways, the Seventh Circuit opined that there is little, if any, actual conflict among the circuits regarding the applicable legal standard. According to the court, —
… the basic tort of infringement simply requires the plaintiff to show that the defendant had an actual opportunity to copy the original (this is because independent creation is a defense to copyright infringement), and that the two works share enough unique features to give rise to a breach of the duty not to copy another’s work.
Access to the Copyrighted Work. The Seventh Circuit determined that Peters had adequately alleged that West had access to Peters’s version of Stronger. The fact that John Monopoly had been the manager for West’s album was “evidence of close collaboration between West and Monopoly suggest[ing] that Monopoly may have passed [Peters’s] song on to West during the production of the album, and that West could have used that song in crafting his own hit single.”
Copying. The court found that Peters inadequately alleged copying by West. Copying, the court noted, is an independent element of infringement, and cannot be proved merely by showing that the defendant had access to the protected work. Instead, proof of copying is made by demonstrating substantial similarities between the two works. In the instant case, the Seventh Circuit held that the similarities alleged by Peters did not rise to the level of copyright infringement.
Alleged Similarities in Plaintiff’s and Defendant’s Songs. The Seventh Circuit compared the allegedly similar refrains of Peters’s and West’s songs, which are set forth below:
|Plaintiff''s Lyrics||Defendant's Lyrics|
|Plaintiff''s Lyrics||Defendant's Lyrics|
|What don't kill me make me stronger The more I blow up the more you wronger You copied my CD you can feel my hunger The wait is over couldn't wait no longer||N-N-N-now th-th-that don't kill me Can only make me stronger I need you to hurry up now Cause I can't wait much longer I know I got to be right now Cause I can't get much wronger Man I've been waitin' all night now That's how long I've been on ya.|
The Court’s Reasoning. Concluding that the creative elements of the songs were not substantially similar, the court made the following rulings:
- The Nitzschean reference in both songs was not evidence of copying, as the German philosopher’s “aphorism has been repeatedly invoked in song lyrics over the past century.” Indeed, the court observed that Kelly Clarkson’s pop hit Stronger held the top spot in the Billboard Hot 100 chart at about the same time as oral argument in this case.” “The ubiquity of this common saying,” the court concluded, “together with its repeated use in other songs, suggests that West’s title and lyric do not infringe on [Peters’s] song.”
- “A common rhyme scheme or structure does not qualify as original expression protectable under federal copyright law.” (quoting Steele v. Turner Broadcasting System, Inc., 646 F. Supp. 2d 185, 192 (D. Mass. 2009)).
- “Nor are we persuaded that the particular rhymes of stronger, longer, and wronger qualify for copyright protection.”
- The use of a fashion model’s name as a shorthand for beauty “is, for better or for worse, commonplace in our society.” Therefore, the fact that both songs mentioned supermodel Kate Moss was not proof that West had copied creative content from Peters’s song.
- The two songs shared “only small cosmetic similarities.”