If a jury's decision earlier this year to punish Robin Thicke and Pharrell Williams for copying Marvin Gaye for "Blurred Lines" took the music world by storm, a ruling out on Friday (Aug. 7) deserves just as much attention.
The case involves a "breakbeat," the looped percussive element of a song that's become a staple in hip-hop, electronic, funk, jazz and other musical genres. For years, musicians have been taking old drumming solos to create new works with near impunity, but those days might be on the verge of being over thanks to a case being pursued against famous pop producer Lukasz "Dr. Luke" Gottwald over the Jessie J hit "Price Tag."
The plaintiff in the case brought in New York federal court is New Old Music Group, whose president Lenny Lee Goldsmith wrote the 1975 composition "Zimba Ku," recorded by the band Black Heat. A drum part in this song has become one of the more famous breakbeats in music history. N.W.A, Pete Rock, Kool G Rap and Heavy D & the Boyz are just some of the artists who are reported to have used it. (See here along with the music in question.)
But it's Dr. Luke who is being sued for copyright infringement for alleged use on the Jessie J song. Specifically, the similarities in the 16 consecutive 16th notes on the hi-hat cymbal, a bass drum patter consisting of two eighth notes on the first beat of the measure, snare drum attacks on beats 2 and 3, and a "ghost note" or "drag" on the snare drum at the end of the measure.
In a summary judgment motion, Dr. Luke's attorneys argued that the drum part in "Zimba Ku" is so common that the percussive elements or a combination of elements couldn't be probative of copying.
"The Court disagrees," writes Judge Ronnie Abrams in today's ruling. "While many of the individual elements of 'Zimba Ku' may be commonplace, Defendants have not shown that, as a matter of law, the combination of those elements in the drum part is so common as to preclude any reasonable inference of copying."
Dr. Luke attempted to point to "prior art" -- or compositions made before "Zimba Ku" that had similar percussive elements. These were Thelma Houston's 1973 "Me and Bobby McGee" and The Jackson 5's "ABC" and "I Will Find a Way."
But Abrams finds faults.
Houston's song had open hi-hat attacks as opposed to closed ones. The Jackson 5 songs had no "drag" or "ghost notes." There's also the matter of the fact that "Zimba Ku" and "Price Tag" were at similar tempo. We're only including some of the percussive analysis. Read the full opinion for a full breakdown on the breakbeat in question.
"This is not to say that Plaintiff has proved that the similarities between Zimba Ku's and Price Tag's drum parts are so probative of copying that independent creation was not possible," continues the judge. "To the contrary, a jury may well find that even though it has not been presented with prior art embodying precisely the combination of elements at issue, the
similarities between Zimba Ku and Price Tag nevertheless do not sufficiently raise an inference of copying. At this point in the litigation, however, the Court cannot conclude as a matter of law that no reasonable juror could infer, on the current record, that the creators of Price Tag copied Zimba Ku."
Because the judge concludes that a genuine issue of fact exists as to whether actual copying has occurred, he defers taking up the arguments that the "Zimba Ku" drumming was sampled. As the case continues, that issue will also be explored.
And if this case isn't settled and actually gets to trial, a jury will apparently be tasked with determining whether the drumming in question is original, evincing some minimal degree of creativity and deserving of copyright protection.
"Defendants do not specifically address this issue in their briefing, although their existing arguments could be read to suggest that because the common elements that make up the Zimba Ku drum part are so trite, and because the aggregate Zimba Ku drum part contains only slight variations on the drum parts contained in 'Me and Bobby McGee,' 'ABC,' and 'I Will Find a Way,' the Zimba Ku drum part is insufficiently creative to be considered original," writes Abrams. "A jury may well so find, but the Court cannot conclude the same as a matter of law, particularly given the low threshold of creativity necessary to find a work original."
This article was originally published by The Hollywood Reporter.