Quick hit
In a decision concluding a six-year legal battle between a U.S. composer and the South Korean company Pinkfong, the South Korean Supreme Court has upheld the decisions of two lower courts, ruling that Pinkfong’s viral version of the children’s song “Baby Shark” did not copyright.
What happened in the South Korean case?
In 2011, U.S. composer and children’s entertainer, Jonathan Wright, released a version of the “doo doo doo doo doo doo” refrain on his YouTube channel @JohnnyOnly.
In 2016, the South Korean company, Pinkfong, released their version on YouTube which became the most-viewed YouTube video of all time in November 2020 and now has over 16 billion views.
Wright claimed his version was a sanitised interpretation of the traditional summer camp song which he believed to be in the public domain. (We found an example of the summer camp song online here, which appears to have been posted in 2008). It wasn’t until Wright was alerted to Pinkfong’s threatened legal action against a South Korean political party for using Baby Shark in a political campaign that he thought he might have a claim to copyright infringement.
In this instance, Wright alleged his 2011 version was an original arrangement in which he owned the copyright. Pinkfong argued that its version was merely an arrangement of the original summer camp song, which was in the public domain.
The BBC has reported that the Supreme Court ruled that Wright’s version “had not reached a level of substantial alteration” from the original summer camp song for it to be considered a separate original work and so did not attract copyright protection.
Musical arrangements and copyright in Australia
In Australia, the different components of a song (the musical composition, the lyrics, and the sound recording) each have separate copyright protection. The copyright owner has certain exclusive rights, including the right to reproduce and communicate the work by streaming it online. The copyright owner of the music and lyrics also has the exclusive right to make an adaptation (which includes an arrangement) of that work.
An arranger will therefore need permission of the copyright owner to make an arrangement. However, if a work is in the public domain (meaning that the copyright in that work has expired or never existed), permission is not required from the original owner. Copyright provides exclusive rights for a set period of time (for works, this is generally 70 years after the death of the author). (An interesting question is whether “Baby Shark” is in fact in the public domain in Australia).
If that arrangement is sufficiently original to comprise a new work, the arrangement itself will be afforded copyright protection.
Anyone wishing to copy or communicate an arrangement of a copyright-protected work will need the permission of both the owner of the arrangement and the copyright owner of the original work.
The “Baby Shark” case is a reminder of some of the tricky issues involved in copyright in musical works, arrangements and infringement.
For assistance with music copyright, licensing and infringement issues, please contact Jules Munro.
By Esther Ting