Song Sung Blue Plugged In
- A federal court decision in February 2024 concerning the song "Song Sung Blue" has clarified the boundaries of copyright protection for derivative works, perhaps impacting musicians and songwriters.
- The dispute arose from a remix of the 1974 song "Song Sung Blue," written by Ned Miller and originally performed by Kenny Rogers.
- Specifically, the lawsuit focused on a 0.6-second sample of the song's instrumental introduction.The plaintiff argued that this sample, even though brief, constituted a ample similarity and an unauthorized...
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Landmark Copyright Ruling: “Song Sung Blue” and the Limits of Derivative Works
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A federal court decision in February 2024 concerning the song “Song Sung Blue” has clarified the boundaries of copyright protection for derivative works, perhaps impacting musicians and songwriters. The case, Song Sung Blue, LLC v. BMG Rights Management (US) LLC, centered on claims of copyright infringement related to a sample used in a remix.
The Case: ”Song Sung Blue” and the Remix in Question
The dispute arose from a remix of the 1974 song “Song Sung Blue,” written by Ned Miller and originally performed by Kenny Rogers. Song Sung Blue, LLC v. BMG Rights Management (US) LLC, No. 22-CV-7488 (SDNY Feb. 29, 2024). Song Sung Blue, LLC, which controls the copyright to the original composition, sued BMG Rights Management, alleging that a sample used in a remix by artist Y2K infringed on their copyright.
Specifically, the lawsuit focused on a 0.6-second sample of the song’s instrumental introduction.The plaintiff argued that this sample, even though brief, constituted a ample similarity and an unauthorized derivative work. The core of the legal battle revolved around whether this short sample met the threshold for copyright infringement.
The Court’s Ruling: No Substantial Similarity Found
On February 29, 2024, Judge Analisa Torres of the United States District Court for the Southern District of New York ruled in favor of BMG Rights Management, finding that the sample did not constitute a substantial similarity to the original song. The court persistent that the sample was not sufficiently original or creative to warrant copyright protection on its own. The judge emphasized that a short, unoriginal sample, even if recognizable, does not automatically equate to copyright infringement. Plugged In reported on the details of the ruling.
The court applied the “extrinsic test” for substantial similarity, which involves comparing objective similarities in protectable elements of the two works. The court found that the sampled portion lacked the necessary originality to be considered protectable. The ruling also considered the “ordinary observer” test,asking whether an average person would recognize the sample as originating from the original song,but ultimately found that even if recognizable,the briefness and lack of originality were decisive factors.
What is a Derivative Work?
A derivative work is a new work based upon one or more pre-existing works. Under 17 U.S.C. § 101, a derivative work includes translations, musical arrangements, dramatizations, fictionalizations, motion picture versions, sound recordings, art reproductions, abridgments, condensations, or any other form in which a work may be recast, transformed, or adapted. Crucially, a derivative work must be *original* to be protected by copyright. Simply copying elements from an existing work does not automatically create a derivative work with its own copyright protection.
The “Song Sung Blue” case highlights that the level of change and originality required to create a derivative work is important. A minimal alteration or a short sample, as in this case, is unlikely to meet the threshold for copyright protection.