“Live in hotels, swing on planes. Blessed to say, money ain’t a thing.” Despite these wise poetic words from Pitbull, it would appear money certainly is a thing when you’re faced with a $3million lawsuit.
An infringement battle is brewing over Pitbull and Ke$ha’s 2013 hit ‘Timber’, as 3 songwriters, Lee Oskar, Keri Oskar and Greg Errico, are claiming that the harmonica melody is identical to their 1978 song, San Francisco Bay. Whilst issues such as these are usually put down to ‘coincidence’, the two samples are so similar it seems a bit too coincidental. Especially as an article published by the Dallas Morning News in December is cited as a reference to that fact ‘Timber’ harmonica player Paul Harrington was instructed to emulate Oskar’s song.
Oskar v Sony
Sony represents Pitbull, and it’s safe to say they aren’t stupid when it comes to these kinds of issues. Therefore, it’s likely that Sony would have obtained a license to sample ‘San Francisco Bay’, so the dispute centers around who gave this license and if they had the rights to do so. ‘Timber’ sold over 4 million copies in the US alone, and so with Oskar claiming that any license obtained by Sony did not obtain permission from the actual songwriters, it would seem he is looking for a slice of the action.
Oskar v Far Out Music
Oskar is also embroiled in another ‘Timber’ spurred lawsuit, this time with music publishers Far Out Music, whose publishing rights are administered by BMG Rights Management. Oskar is claiming that FOM took a larger royalty share for ‘San Francisco Bay’ than was allowable under the terms of a 1978 contract, and that FOM apparently refused to accept copyright termination notices about the song. Whilst, if true, FOM would have been impeding the plaintiffs ability to take full control over their copyrights, given the success of ‘Timber’ it isn’t too much of a shock that FOM were grasping onto the copyright with both hands.
Sony could be lucky and settle out of court if this battle goes the same way as Coldplay v Joe Satriani, whereby the successful ‘Viva la Vida’ was claimed to contain substantial original portions of a Satriani song ‘If I could fly’.
Yet, as the two samples are nearly identical it could easily go the way of The Rolling Stones v The Verve. The massively successful ‘Bitter Sweet Symphony’ sampled the Stones track, ‘The Last Time’. According to an agreement, the royalties were to be split 50/50, yet the Stones then claimed too much of the track had been used. Whilst The Verve retaliated saying the Stones were being ‘greedy’, they were forced to bow down and stump up 100% of the royalties to The Rolling Stones.
Whether it’s an extremely overplayed hit song, or just a brilliant idea, it’s so important to double-check any licenses to see exactly who has IP rights. And if you’re drawing up a contract to agree on royalty shares, make sure you get as much legal advice as possible to save any awkwardness or arguments later down the line.
If you’d like to discuss your legal requirements in further detail, or just want a chat to see what we could do for you, we’d be delighted to talk to you. Email us on hy@hybridlegal.co.uk or call us on 0333 014 4568.
Ryan has helped a vast number of businesses protect and control their intellectual property as well as drafting and advising on consumer and commercial contracts.
