Alicia Keys Sued for Copyright Infringement
Alicia Keys and her record company, Sony Music Entertainment, are being sued for copyright infringement by the writer of the song “Hey There Lonely Girl” over a simple lyric phrase. Alicia Keys’ latest single, “Girl On Fire,” from her album, Girl on Fire, may not sound much like Earl Shuman and Leon Carr’s “Hey There Lonely Girl.” (You can listen to them here: “Girl on Fire” and here: “Hey There Lonely Girl“). Given the significance differences between the recordings, Mr. Shurman’s concern is limited to the following phrase from “Girl On Fire”: “Nobody knows that she’s a lonely girl. And it’s a lonely world.” The hook in question from the popular 70’s song goes, “Hey there lonely girl. Lonely girl.” (You can hear the two portions here.) Is that enough to support a claim of copyright infringement?
It seems that Mr. Shuman got the idea to file a copyright lawsuit against Keys after reading a blogger’s article discussing Keys’ album, and in particular, the song “Girl On Fire.” The blogger, Roger Friedman, discusses how Keys uses samples of other artists’ music, but fails to credit Shuman and Carr for her use of the two lines from “Hey There Lonely Girl.” In particular, Friedman states, “In the middle of the song, Alicia sings a couplet or so from Eddie Holman’s 1970 classic ‘Hey There Lonely Girl.’ The song was written by Leon Carr and Earl Shuman, who are both gone to rock and rock and roll heaven.” (For the record, Earl Shuman is still alive.)
Mr. Shuman commented on Mr. Friedman’s blog post, saying he appreciated the blogger’s expertise and that he recognized that an “important part” of “Hey There Lonely Girl” was in Keys’ recording. Fifteen days later, on December 10th, 2012, Mr. Shuman filed a copyright infringement lawsuit against Sony Music Entertainment and Alicia Keys for her use of the two lines. (You can see the complaint here.) The complaint bases most of its copyright infringement argument on the blog article that Mr. Friedman wrote. It goes on to claim that even though the alleged copying only lasts a few seconds, it comprises an “important” part of Keys’ work that captures the essence of the original song. It appears that Mr. Shuman’s attorney is attempting to pre-empt fair use argument. As you might remember from an earlier blog post of mine, a fair use defense to copying will fail if the “heart” of the original work is taken, even if the copying only includes a small part of the original.
Mr. Shuman has been heavily criticized for his lawsuit. Even if there are some similarities, many don’t think the borrowed portion amounts to “copyright infringement,” especially given that Mr. Shuman did little to establish in the complaint how Keys’ song infringed on his work. Others see difficulties in determining how royalties are to be paid, if there was indeed infringement. It is unclear how Shuman plans to show how those two lines in Keys’ song really “make” the song a hit or money maker. (Note that these points do not need to be established in the initial complaint; rather, they would be illuminated through the long and torturous process of discovery and trial.)
In the 1970s, former Beatle George Harrison faced a similar battle concerning one of his singles, “My Sweet Lord,” which allegedly infringed a brief melodic segment from The Chiffons’ doo-wop hit “He’s So Fine.” (Click here to compare the two songs.) The battle waged on for five years while Harrison’s attorneys tried to settle out of court. Ultimately, the settlement talks were unsuccessful, and the court finally ruled in favor of the Chiffons. While the court did not conclude that Mr. Harrison had intentionally copied the song “He’s So Fine,” the basic musical structures of the songs were remarkably similar. A judgment of $587,000.00 was awarded in favor of The Chiffons.
The Alicia Keys case can be distinguished from the “My Sweet Lord” case on several grounds. Does the retro sound of “Girl on Fire” suggest that Ms. Keys was intentionally trying to quote from the 70s hit? And does it make a difference that Ms. Keys used only a few words from the lyric, rather than a few musical notes? “My Sweet Lord” uses the musical phrase in question over and over through the song, while the disputed portion of “Girl on Fire” is relatively brief.
All of this goes to show that determining how much borrowing is fair use – and whether any copyright infringement has occurred at all – is fiendishly difficult. We lawyers call these types of issues fact-specific, which is a nice way of saying there is no way to know whether what an artist has done is legal until the other party sues and a court decides the matter. Unfortunately, that reality makes it very difficult for artists to create and put out their works. It’s one thing for a superstar like Alicia Keys to have to defend herself. Imagine if she was a newly emerging artist without a penny to her name. This is yet another example of a copyright system badly in need of reform.
