“Where there’s a hit there’s a writ” is a well-known showbiz phrase that neatly encapsulates a desire to piggy-back on someone else’s success. In the case of the Bellamy Brothers, their lawyer is trying to paint a picture of two nice, kind, benign, wealthy old guys who don’t need anybody else’s money and wouldn’t be involved in a shakedown. The mood music is that they’re feeling a sense of vague unease that something has been stolen from them and something ought to be done about it.
But what HAS been stolen, if anything? According to Wikipedia, "If I said you had a beautiful body would you hold it against me?" was an old Groucho Marx quote. “Songwriter David Bellamy told country music journalist Tom Roland that he regularly watched Marx's show, You Bet Your Life, where Marx sometimes used the quote while interviewing an attractive female contestant, then shake his cigar and raise his eyebrows to elicit a reaction. The comment stuck in Bellamy's head as a possible hook line for a song.”
So Dr Luke couldn’t be said to have stolen the exclusive property of David Bellamy, as it wasn’t his in the first place. And incidentally, I wonder if he’s feeling any guilt at having stolen it from Groucho Marx, or a powerful urge to pay royalties to Groucho’s estate? If not, then presumably he’d be happy to give a nod of comradely, songwriterly approval to Dr Luke if he claimed to have obtained it from the same source.
It seems, then, that the pursuit of damages for plagiarism of the title or inclusion of the words in themselves is unlikely to succeed. The Bellamy Brothers’ lawyer seems to have accepted this, and is now exploring the possibility that the precise USE of the phrase “hold it against me” in Britney’s song is an infringement of the Brothers’ copyright.
The first avenue of investigation is to ask if the musical setting of the phrase is obviously identical, substantially similar, broadly similar, similiar in some particulars and so on. If the Brothers’ musicologist says any of these apply, it would then be up to their lawyer, or the expert on copyright whom they’re intending to approach, to determine the most fruitful course of action.
You may think “But Britney’s song is nothing like the Bellamy Brothers’ one.” You’d be right, in a commonsense way. And that’s the first hurdle for the Brothers. There is no obvious resemblance, and that’s why they need a musicologist. So far, their lawyer has suggested that if you double the speed of their song, the similarity to Britney’s becomes more obvious. But who is going to do that? A recording is presented at a certain speed, and that is the product. It could be said that if you’re going to change speeds, change time signatures, maybe add or subtract a note or two, anything can be made to sound like anything.
But the plaintiffs will not be content with that. They will allege that precise use of the phrase in their song was the clear derivative source for the use of the phrase in the defendant’s song, or that it was a clear inspiration, even if the defendant had to alter and distort it to get that inspiration. Here the defendant will use the services of a different musicologist, who will say that there is no clear path of derivation from one song to the other, and that, in any case, there will always be coincidental similarities between musical phrases that have no common origin, especially given the constraints of having to set to music a phrase with a fixed number of words and only one way of saying them.
There’s a huge number of cases like this going through the system at any moment. So many that it takes many years for them to be heard, and it has to be said that very few are successful. The cases of Men At Work vs Marion Sinclair, Chandos Records vs The Beloved, and The Verve vs Allen Klein were clear and obvious cases of unauthorised use of copyright material - you could call them simple theft - but even these required protracted legal action by the plaintiffs. You can imagine how difficult is the road to be traveled by someone alleging a theft when nobody can agree that anything has been stolen at all, never mind how deliberately or culpably. But court actions often have outcomes that are counter-intuitive in the extreme.
The Bellamy Brothers’ lawyer’s statement sounds like a “Gone fishin’” message. The impression it conveys is that he has no idea if any wrong has been done to his clients, but he intends to get them some money anyway, by hook or by crook. He may believe that the very possibility of wasting a lot of time in court will scare Dr Luke, Jive and Britney’s management into a cash offer to make him go away. But he needs to be careful in how he phrases his allegations that Dr Luke has a track record for unauthorised borrowings. If Dr Luke has never, or hardly ever, been found guilty of infringments, to make such allegations in public could open the Bellamy Brothers’ lawyer up to a possible writ for libel.
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