No doubt you’ve heard of a little tune called “Happy” by Pharrell. It’s also likely that you’ve seen the musician and designer in the now famous over-sized hat. What you may not have seen is the “world’s longest music video” project featuring Pharrell and others dancing for 24 hours to “Happy”. Whether the concept sounds like a good way to spend an entire day or not, there’s no denying that it has garnered a lot of attention, including that of dancer and actress Anne Marsen, who starred in a 75-minute dance film called “Girl Walk // All Day”. The 2011 project, which was released by Wild Combination, follows Marsen and two others as they dance around New York City to Girl Talk’s “All Day” album. The two music videos undeniably share a similar concept – spontaneous-looking dancing for a long period of time – but as Marsen pointed out with a short video (see it after the break below), they share more than just that. There haven’t been any whispers of a lawsuit thus far, so ours is purely a hypothetical question: are there any potential legal claims against Pharrell and company?
The area of law that would apply to both videos is copyright law, which protects “original works of authorship” that are “fixed in any tangible means of expression”. Copyright law does not, however, protect ideas, only the expression of those ideas. So, the notion of dancing in a way that looks spontaneous in public is not something anyone can claim ownership in, but the expression of that idea, i.e. the way the three dancers moved about NYC, might be protectable choreography.
Protection for choreography has only been expressly provided for in the Copyright Act since 1976. What this means is that what qualifies as protectable choreography is not exactly clear. The Unites States Copyright Office defines choreography as “the composition and arrangement of dance movements and patterns usually intended to be accompanied by music.” But there has to be some degree of originality.
Because the bar for originality is low, let’s assume the “Girl Walk // All Day” video satisfies the requirement, and thus the choreography, specifically the part that Pharrell may or may not have been inspired by, warrants copyright protection. The next inquiry, then, is whether or not there is infringement. To make a good case for copyright infringement, it would have to be shown that the “Happy” video is substantially similar to “Girl Walk // All Day”. While there’s no question that the two videos have a lot in common – similar dance steps, similar locales for dancing, and even similar costumes in some portions – we’re not sure that’s enough to meet the substantial similarity requirement. There’s a lot to be sorted out in court before we’d definitively say there’s substantial similarity or not.
One case sheds a little bit of light on what goes into determining substantial similarity when it comes to choreography. In 1986, the U.S. Court of Appeals for the Second Circuit considered a case that centered on George Balanchine’s “Nutcracker” and whether or not MacMillan publishers could print a book containing pictures from Balanchine’s work. The case was eventually settled out of court but not before the Court of Appeals noted that the test for infringement is “whether ‘the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same’” and pointed out that even “a small amount of the original, if it is qualitatively significant, may be sufficient to be an infringement.”
In other words: despite the fact that the portions of Pharrell’s video that are in question are relatively minimal when considering the whole thing lasted an entire day, would an ordinary person regard the two works as substantially similar in feel? This is a tough question to answer. It’s certainly plausible that Pharrell was inspired by the “Girl Walk // All Day”. But is that enough?
And what’s more, even if substantial similarity can be shown, the oft-used fair use defense would likely be utilized. The Copyright Act tells us that there are four factors to be considered when determining if there is fair use: the purpose of your use, the nature of the copyrighted work, the amount and substantiality of the use, and how the use will impact the market for the copyrighted work. In practice, though, it seems like one consideration rules above all others, and that is how transformative the new work is. This concept came from a 1994 Supreme Court case, which found that to be transformative, a use must add to the original "with a further purpose or different character, altering the first with new expression, meaning, or message."
Our guess is that there would be a persuasive transformative argument in Pharrell’s favor should he find himself in court. But it doesn’t look like that’s going to happen. In fact, Jacob Krupnick, director of “Girl Walk // All Day” has expressed interest in working with Pharrell, saying he’d “be thrilled to collaborate on a project with him.” That being said, common decency would suggest that if any inspiration was taken from Krupnick’s video, credit should be given where it’s due (as in a nod in acknowledgement that that’s what happened).
JENNIFER WILLIAMS is a recent law school graduate who writes about fashion, the legal avenues available for protecting it, and the ways in which the laws are falling short. For more from Jennifer, follow her on Twitter.