Enough is (not dissimilar) enough? Cardi B copyright infringement case continues

American rapper Cardi B is being sued in the States by the writers of the song “Greasy FryBread”, which they say she copied in the form of her song “Enough (Miami)”.

The first requirement for a successful claim would be to satisfy the court that the alleged similarities between the two songs were as a result of copying, rather than coincidence. This was the issue which the plaintiffs failed to establish in the Ed Sheeran case, which we discussed here.

If the case was being heard in the UK, and if there had been copying, the claimants would then have to persuade the judge that the parts of the song which had been copied amounted to a “substantial part” of the original song. What this effectively requires is the copied parts to represent important parts of the original song, so copying only a few bars of a song could still infringe copyright if they were particularly significant (think of the repeated two-bar riff used in The Verve’s Bitter Sweet Symphony, and the copyright disputes with the Rolling Stones which ensued here.

The initial US court documents do not break down the particular aspects of the song that they claim have been copied. However, listening to the song side by side reveals that the bass line starts on the same repeated three notes before varying slightly, using a similar sound, very similar beats per minute, with a relatively simple drum beat featuring a similar repeated high-hat cymbal rhythm. It wouldn’t matter that the lyrics are completely different, as the focus would just be on the similar musical parts.

Are these two respective parts sufficiently similar? You can listen to each song on YouTube here:

• Cardi B - Enough (Miami) [clean lyrics]
• Sten Joddi - GreasyFrybread [explicit lyrics]

One interesting issue with modern songs of this genre is that they often only have one riff or loop which repeats throughout the entire song, rather than a more traditional verse-bridge-chorus-middle 8 song structure, which means that the bass and drum parts play a much greater role in the sound of the overall song.

Atlantic Records has recently filed a motion for dismissal on the basis that the claimants attempted to circumvent the need for copyright registration.

The claimants originally claimed infringement of federal copyright law, but this was amended to be a claim for infringement of common law copyright under Texas law. This new claim was refiled at the US District Court for the Southern District of Texas, a forum that Atlantic Records argues also lacks jurisdiction.

Atlantic Records alleges that this amendment and refiling was the result of the claimants realising that they had failed to register their song “Greasy FryBread” at the US Copyright Office. The filing alleges that this came to the claimants’ attention when counsel for the defendants pointed it out.

As in the UK, federal copyright automatically exists once a work is created. However, under the Copyright Act of 1976, registration confers a number of benefits which includes the ability to claim infringement of federal copyright law. Atlantic Records argues that this meant that the original claim was a non-starter as registration was not completed before filing. State-level copyright does not have the same registration requirement. However, Atlantic Records argues that the existence of federal copyright, even if it is not actionable due to lack of registration, means that equivalent state-level copyright protection cannot be relied upon.

While registration is not applicable to England and Wales, this case highlights the need to comply with whatever administrative requirements are relevant to the intellectual property that you are trying to protect. Any potential jurisdictional differences are also potentially crucial.