The Bellamy Brothers appear to be facing an uphill battle in their infringement claim against the songwriters of Britney Spears' "Hold It Against Me," according to copyright experts.
The Bellamys turned to press outlets in January to complain about alleged similarities between their chart-topping 1979 Hot Country Singles hit "If I Said You Had a Beautiful Body Would You Hold It Against Me" and Spears' recent No. 1 pop hit, which was written by Max Martin, Lukasz "Dr. Luke" Gottwald, Bonnie McKee and Mathieu Jomphe.
The four songwriters returned fire in a lawsuit filed March 2 in a U.S. District Court in Tampa, Fla., accusing the brothers of make defamatory and libelous statements about them.
"In a publicity stunt aimed to increase their record sales, profit from plaintiffs' successes and to combat their dwindling relevance in today's music industry," the suit states, "the Bellamy Brothers have embarked upon a malicious public campaign in which they have falsely accused plaintiffs of infringing the copyright in and to the musical composition 'If I Said You Had a Beautiful Body Would You Hold It Against Me.' "
The Bellamys and Spears songs don't appear to be similar musically, but the latter's track includes the phrase "If I said I want your body now, would you hold it against me," which is similar to the lyrics found in the chorus of the Bellamys' song.
"If I Said You Had a Beautiful Body Would You Hold It Against Me" is published by Sony/ATV Music Publishing. Spears' "Hold It Against Me" is published by each of the writers' own publishing companies through Gottwald's Prescription Songs, with Kobalt Music Group serving as administrator.
The Bellamys, Sony/ATV and Kobalt Music declined to comment. Gottwald's management didn't respond to Billboard's requests for comment.
After first going public with their grievances in January, the Bellamys have not yet filed an infringement suit against the four songwriters of the Spears song. But their attorney, Christopher Schmidt, appeared to up the ante by announcing Feb. 21 that copyright lawyer Richard Busch, a partner at Nashville law firm King & Ballow, was investigating whether to pursue litigation.
Busch has recently prevailed in high-profile music cases, including a widely publicized 2010 case under which a federal court found that Universal Music Group's sale of Eminem's music at iTunes constitutes a licensing arrangement, warranting a higher royalty.
Busch also nailed a win in 2007 on behalf of Bridgeport Music and Southfield, Bridgeport's sister publisher at ASCAP, when a federal jury found in favor of the publishers in a copyright infringement suit against UMG for Public Announcement's "D.O.G. in Me," which featured a one-word sample of the word "dog" from the George Clinton song "Atomic Dog." The ruling was upheld by the U.S. Sixth Circuit Court of Appeals in Nashville in 2009. In its decision, the Sixth Circuit judges noted that "the copying of a relatively small but qualitatively important or crucial element can be an appropriate basis upon which to find substantial similarity."
While Busch's "Atomic Dog" win was seen as expanding the scope of what is protectable copyright, a copyright lawyer who asked to remain anonymous says that was a sampling case while a "diminutive claim" strategy is at the heart of the Bellamys' argument.
If Busch files an infringement suit and manages to avert a summary judgment against the case, it "might be ripe for a settlement," says a law professor specializing in copyright law who also requested anonymity. "In copyright law, a short phrase in and of itself is not protected."