As the saying goes, big things come in small packages.
Ariana Grande, Sony/ATV, UMG Recordings and others have been hit with a copyright infringement lawsuit over “The Way,” which spent 26 weeks on the Billboard Hot 100 chart this year.
The plaintiff is Minder Music, a UK entity which owns rights to songs written and recorded by The Jimmy Castor Bunch, an American disco and funk group that achieved success in the 1970s. One song in particular was a huge hit — 1972’s “Troglodyte,” which included the spoken phrase, “What we’re gonna do right here is go back, way back, back into time.”
Speaking of going back in time, the phrase has popped up in the works of others, including N.W.A and Christina Aguilera. It’s “iconic,” says Minder Music, and can’t be used without license.
So Minder Music is now bringing a lawsuit over “The Way,” which according to the plaintiff includes the “substantially similar” phrase, “What we gotta do right here is go back, back into time.”
Can a phrase so short muster enough originality to merit copyright protection? Or will a judge see any appropriation as merely being de minimus?
Notably, Minder Music is being represented by Richard Busch at King & Ballow, who once represented Bridgeport, an entity controlling recordings by George Clinton and Funkadelics. In a lawsuit a few years back against Universal Music, he was able to prevail in the protection of the phrase “bow wow wow, yippee yo, yippea yea” and the repeated use of “dog.”
Busch sees the latest lawsuit against Grande similarly. The lawsuit filed in Nashville federal court cites the 2009 Bridgeport case, which made its way to the 6th Circuit Court of Appeals. The jurisdiction also is home to the federal judge who earlier this month refused to toss a copyright infringement case against Carrie Underwood and Brad Paisley over the way the phrase “baby, remind me” was used in the country singers’ hit song, “Remind Me.”
As to the latest case, the lawsuit makes the argument that “the songs’ phrases are strikingly similar in several ways, including but not limited to: nearly identical lyrics; similar enunciation speed with a fast and consistent pace for ‘What we gotta do right’ and a slightly slower pace for ‘here is go back,’ and substantially similar placement at the same places in the respective compositions. The deliberate compositional decision to place the ‘Troglodyte’ Phrase at the beginning of ‘The Way,’ as it appears in ‘Troglodyte’ itself, not only shows a deliberate attempt to copy ‘Troglodyte’ compositionally, but to also evoke ‘Troglodyte’ to the many fans of it.”
Minder Music is seeking a declaration of willful infringement, a permanent injunction, statutory damages of $150,000 per infringement, and further attorneys’ fees.
We’ll add the defendant’s response if we hear anything.