While copyright infringement in the music industry is not novel news, it is unusual when an artist is sued for crafting his new music based on inspiration from his former hits. Such is the case with hip-hop artist, Chris Brown, in a copyright lawsuit filed by music publisher BMG Rights Management LLC (BMG) claiming that Omarion, another hip-hop artist, “infringed an earlier Chris Brown song when the two collaborated for their 2014 hit ‘Post To Be.’” [1]
According to BMG, which owns a fifty percent stake in the original track “Came To Do,” Omarion and Brown “used the older track without permission as ‘a compositional template’” and created an “unauthorized derivative work” by also writing the song in minor keys and creating identical melodies, pitches, intervals, rhythmic durations, beat placement and hook lyrics. [2] This lawsuit is unusual in the realm of copyright infringement because Brown “actually collaborated on the allegedly infringing track,” but is not involved in this case. [3]
Brown’s simultaneous involvement and absence create an interesting set of circumstances. These peculiar circumstances are further exacerbated by a suit filed by a songwriters’ advocacy group in September 2016 against the U.S. Department of Justice regarding the recent changes made to the decades-old antitrust consent agreements governing how American music is licensed. [4] One of these changes is that “ASCAP and BMI would only be allowed to offer ‘100 percent licenses’” that would grant a partial stake owner the right to license the entire the song, not only the part they were involved with. [5] This would not only expand the reach of consent granting agreements, but would also alter the relationships in creative collaborations, as may be the case here. If the change is approved, Brown’s involvement as the co-song writer may give him the right to use the music in “Came To Do” in any new track. Can the music publisher then successfully bring a claim of copyright infringement when the system of fractional licensing no longer exists?
Brown’s involvement with the allegedly copied track also creates an issue with the facts of the case itself, as his unique singing style is tied into the copyrighted elements of the song listed above. It may become difficult for the court to look at comparisons of the two songs because the same person lent his vocals to both tracks, perhaps leading to unavoidable similarities. Additionally, because he is also associated with the alleged infringing song, Brown’s absence from the case becomes even more confusing, as he could arguably be liable for “contributory and vicarious copyright infringement” by allowing Omarion to use elements of the former track in the later collaboration and possibly for committing direct copyright infringement as well. [6]