They do hold it against you

Britney Spears may not want anyone to “Hold It Against Me” according to her latest single, but the U.K.’s Daily Mail is reporting that Bellamy Brothers [Wikipedia backgrounder] are considering a lawsuit against the pop star:

Britney is accused of ‘ripping off’ the rock ballad If I Said You Had A Beautiful Body Would You Hold It Against Me by the Bellamy Brothers.

The American singers claim Britney’s song is too close to their own 1979 hit which topped the charts in six countries, and David and Howard Bellamy are set to met with lawyers, according to reports.

The Daily Mail has embedded two YouTube videos at the bottom of their article if you want to compare the two songs directly for yourself.

My personal opinion is that the songs have little in common besides two scène à faire concepts endemic to popular love songs:  (1) “I want you badly/physically.”  (2) “Please don’t hate me for (1), aforementioned.”  Is the mere fact that both are invoked in rapid succession really enough to establish copyright infringement?  To be sure, Britney uses the the same “hold it against me” phrase that the Bellamy Brothers use, but does that extremely short phrase even have enough originality to establish copyrightability?

Notwithstanding all this, my guess is that the (albeit small) legal risk of losing may be more than the label wants to deal with.  After all, American courts have found that even subconscious copying is enough to infringe (and against a former Beatle, no less!).  More to the point, there would be substantial legal defense costs for Britney’s label, win or lose.  Rational decision:  give the Brothers a quiet, out-of-court settlement just to make them go away.

Update 2/21/2011: In the comments, Jennifer points out that the chorus in Survivor’s “I Can’t Hold Back” is also incredibly similar to Spears’ single (YouTube link). I agree — frankly, it seems a lot closer to me than to the Bellamy Brothers song.

However, my response to this line of argument is, “so what?” As several comedians have pointed out, pop songs are notoriously one-dimensional, consisting of endless iterations of Pachabel’s Canon in D and/or four chords. When it comes right down to it, drawing lines between where one song starts and another stops is nearly impossible, which is why academic musicologists often end up as expert witnesses at music infringement trials (billing several hundreds of dollars per hour — a pretty good gig).

This is a fundamental problem with a legal system that considers copyrights “property” in the same sense that, say, land is “property”. For the most part, land’s boundaries are clear/definable, and one can know if one has trespassed. But how can one know (with anything approaching certainty) that one has trespassed/infringed a copyright? The lines are inherently abstract, vague, and therefore subject to debate.

Upshot: a zealous (and deep pocketed) copyright owner ends up owning more. An overzealous landowner may sue anyone and everyone who so much as puts a toe over her property line, but her vigorous defense of her property boundaries does not change where those lines actually are. But this is arguably not the case with the overzealous copyright owner. With copyright, defense becomes offense and the copyright’s limits actually expand as the public starts giving copyright owners a wider and wider berth. There are all-too-many examples of this documented over at Chilling Effects.

Update 2/22/2011According to a post over at the ABA Journal, here comes the aforementioned expert, right on cue:

A “renowned musicologist” is evaluating the two songs, [Bellamy Brothers laywer Christopher] Schmidt says….

0 thoughts on “They do hold it against you

  1. First off, Britney certainly made enough extra cash with the perfume, makeup, and dating site time the video gave away to cover the legal fees. However, she may have been forced to push the cheap-o adds because she either needed to hire a double to do her dancing for her or a computer magician to make her video-worthy. So maybe there is no extra cash.
    Second, I hate to break it to both of these stars, but “don’t hold it against me” is actually a phrase that is in common usage – meaning that people recognize and use this phrase within the mix of the English language. I would assume that because this phrase is well-known and packs a punch of imagery, the song writers capitalized on it to make the lyrics catchy. Maybe the English-speaking public should sue. Or at least the OED.

    The writer of “Good Morning” from Singing in the Rain might have to get on his toes here. There’s cash to be had.

    Like

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