music_composer_john_butler
John Butler (by John Dudelson)
In the past 24 hours, much attention has been given to a case of potential copyright infringement - the track in question being Zebra by John Butler Trio (official video below).

During this week's Super Bowl, an ad for yoghurt made by Dannon in the US has featured music sounding very similar in feel and melody to Zebra (video of this ad also below) .

Was this a case of unauthorised use of the John Butler Trio track? No, it is clearly a different recording. Is the music similar between the two? Yes.

Now here's the kicker. Is this an infringement of copyright?

Well...? Who's to say. Really - who's to say? Who will make a public, legal ruling that there has been an infringement of copyright in this case? I strongly believe NO ONE will. And I will stand corrected and surprised if this uproar amounts to anything more than an undisclosed out of court settlement between the two parties.

Why? Simple. Because music is very complex and questions of similarity are incredibly hard to quantify. The instruments used, pitch, speed, melody, number and placement of rests, time signatures, additional layers added or subtracted all have an impact on how "similar" one track may seem to another - and it is all subjective. But what is the threshold beyond which a track could be seen to infringe upon another?

As I discussed over 18 months ago, there is not likely to be a legal precedent set on music copyright infringement in cases like this any time soon, due to the inevitable opening of floodgates which would follow. All manner of claims of "this sounds like that" and "this bit is almost exactly the same as that bit" begin choking courtrooms.

When it comes to copyright infringement like this, who'll be the judge?


 


Comments

Chris Miller
08/02/2012 8:46pm

For the sake of John Butler I hope that the judge will be Federal Court Justice Peter Jacobson. In February he ruled that Men at Work had breached Larrikan Musics copyright of 'Kookaburra Sits in the Old Gumtree' written in the 1940's, and ordered Colin Hay and his writing partner to pay 5% of royalties back to 2002. The breach was for the flute riff only.
The other issue is that Dannon has already issued an apology to John Butler which they should receive some credit for, but it may also weaken any legal defense. He should also have apologized for the appalling ad.
John Butler's albums have sold really well in the US, so there could be some serious dollars involved in this case. The Americans do take their copyright breaches very seriously.

Reply
08/02/2012 9:20pm

Thanks for the comment Chris. You're right about the Land Down Under ruling, which was an undeniable replication of the "Kookaburra sits in the old gum tree" melody (intentional or otherwise...).

In a case like the JBT vs Yoghurt track though, it's more that it comes across as very similar in many ways but without actually being the same. Therein lies the difficulty in publicly settling an infringement claim in this case.

Will be keen to see what comes of this one...!

Reply
28/02/2012 2:13am

well, that one is pretty clear cut infringement. In this day and age, i'm not sure it means anything anymore though.

Reply
24/07/2013 10:51pm

Your blog is a great treat for the musical enthusiasts and lovers and I appreciate you for creating this blog in a colorful way. You had added up the required contents that should satisfy the hearts of many music lovers and the videos posted was a clear indication of that. Thank you very much.

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