Advance Sheet. Does Genius Steal?

• Author: Robert E. Shapiro
• Pages: 58-61

LITIGATION 58

Advance Sheet

ROBERT E. SHAPIRO

The author, an associate editor of Litigation, is with Barack Ferrazzano Kirschbaum & Nagelberg LLP,

Chicago.

Devotees of Sesame Street songs will re-

member well an encounter between Bert

and Ernie over Bert’s “Pat, Pat, Patty, Pat”

jingle. As is his wont, Bert has been ear-

nestly at work on a new song and is burst-

ing with pride over a one-verse compo-

sition about patting your stomach. He

thinks this will knock the socks off his

bosom buddy Ernie, not to mention the

other assembled Muppets. The response

is disappointing; his audience finds the

tune uninteresting, in fact boring. “That’s

it?” one asks. Bert is befuddled and feels

underappreciated, once again.

Ever the enthusiast, Ernie comes to

the rescue, popping up with his own

inspiration: “Maybe we should make it

more complicated,” he cheerfully pro-

poses. “More complicated????” Bert asks

incredulously. Ernie then shows every-

one what he means, as he has the Muppets

join together to turn Bert’s few spare lines

into a multipart choral masterpiece cho-

reographed with whirling, twirling, and

hopping around, while still leaving ample

room for unlimited additions concerning

all parts of the Muppet anatomy. Each lis-

tener is implicitly invited to add a favorite

activity to the fun thereafter. Et, voilà!!!

A delightful, and highly marketable, new

tune for the Muppets’ repertoire.

Who is the creator of the ultimate

song? Bert is the one who devised the

original tune and wrote the basic lyrics.

There’s no question Ernie built his mag-

num opus from what Bert did, copying

both the melody and the rhythmic pattern.

But is that where the creativity, and the

credit, lies? Bert’s song was, quite simply,

a dud. It was uninspired and uninteresting,

destined to be dismissed and forgotten, a

damp squib. Ernie’s memorable creation,

by contrast, explored—invented, even—a

range of previously unconsidered possi-

bilities and expanded, elaborated, recre-

ated, and reimagined the boring original

into a stupendously entertaining compo-

sition of music and dance against which

the original paled, if it was not subsumed

altogether. Is Bert really entitled to any

accolades at all? Is it even Bert’s song any

longer? Isn’t it Ernie’s imaginative re-

working, his genius that is key? Are they

both somehow original creators or is one

or the other entitled to all the glory?

Who Is the Creator?

Lest you think this is mere child’s play, or

even just idle thought mongering, consid-

er the fate of Katy Perry and her hit song,

“Dark Horse.” The palpable success of her

number, along with the lavish pop video

accompanying it, did not prevent, indeed

may have encouraged, a Christian rap-

per claiming that Perry’s hit stole its ba-

sic musical themes from one of his songs.

The obvious difference between both the

mediums and the messages might give

one pause, but the similarities between

the beat line of the two songs, and the

sounds used to create it, were also unde-

niable. The overall impact of Perry’s song,

as well as its popularity, was as different

from that of the Christian rapper’s prod-

uct as one might imagine, creating total-

ly different moods and impressions, but

the rhythmic overlap was substantial too.

Substantial enough, said a federal jury, to

find Perry liable for copyright infringe-

ment and award the rapper $2.3 million

in damages. This was a small fraction of

what the Perry song garnered in the open

market, and what the rapper wanted, but

not chump change either.

Music professionals will tell you that

this kind of dispute is becoming more and

more common in the industry. An all-star

cast of composers and performers have

been the targets of copyright lawsuits for

perceived similarities between their works

and more obscure “originals,” not a small

practical problem for the industry and the

courts alike, regardless of the outcome on

appeal. There’s more at stake here than

money and lawsuits, however. The theo

-

retical seriousness of the problem can be

seen in a quick look at the U.S. Constitution.

DOES GENIUS STEAL?