Wiz Khalifa's accuser may have a tough time
The most famous cases of copyright infringement in pop music have revolved around a distinct melody line.
In the most high profile case, a judge in 1976 deemed that George Harrison "subconsciously" lifted the melody of the Chiffons' 1963 "He's So Fine" for his 1970 hit "My Sweet Lord." More recently, in 2009, British rock band Coldplay settled out of court over a melody in "Viva la Vida" that Joe Satriani claimed was similar to his own "If I Could Fly."
In the case of Max Gregory Warren, a rap artist from Sharon, Mercer County, filing a suit against Pittsburgh-bred Wiz Khalifa, his label and songwriting partners, Mr. Warren is clearly playing the color card.
In a suit filed in U.S. District Court in Philadelphia on Dec. 30, he claims that Khalifa's multi-platinum, chart-topping, Grammy-nominated hit "Black and Yellow" is "substantially similar" to his 2008 song "Pink N Yellow." Other than talking about cars and jewels, which are common hip-hop themes, there's little similarity to the lyrics, the beat, even the melody of the chorus, until you hit the repetition of the words "and yellow."
Tom Kikta, assistant professor of music technology and guitar at Duquesne University, doesn't see enough there.
"You have two colors and they're associated, but what else do you have?" he says. "In 'Pink N Yellow,' there's no melodic line. He's just chanting it. If I sit here and play the melody on guitar, it's just one note. When Wiz Khalifa sings 'Black and Yellow' he goes G-A-B-flat-A, he actually has a melodic line. So what do you really have here? Just the word yellow? You can't have a chorus using the word 'Yellow'? You couldn't write 'Tie a Yellow Ribbon Round the Old Oak Tree'?"
"But there's no litmus test," he adds, saying that people file copyright suits, basically throwing it against the wall to see what a judge says.
"Substantially similar" is "a very broad and elastic standard," according to University of Pittsburgh law professor Michael Madison, who specializes in copyright law, "because that may refer to an entire length of the song, might refer to melody, the hook." In the rare case of a copyright infringement jury trial, he says, "there are not experts who are making decisions. In copyright law over time that's created a lot of ambiguity."
Max Gregory Warren vs. Cameron Jibril Thomaz (Khalifa's real name) also is unique in that in most of the known copyright cases, it's been one high-profile artist accused of plagiarizing another. In addition to Harrison/Chiffons and Coldplay/Satriani, the Flaming Lips amicably settled with Cat Stevens over 2003's "Fight Test" and The Verve with the Rolling Stones over 1997's "Bittersweet Symphony." There's also a famous 1991 case of the Isley Brothers winning a judgment against Michael Bolton for the similarities between their 1964 song "Love Is a Wonderful Thing" and his song of the same title.
The Khalifa case pits a relatively unknown artist against a famous one. Mr. Warren goes by the handle Maxamillion, not to be confused with the Chicago hip-hop artist of the same name. He and the song "Pink N Yellow" appeared on a 2008 mixtape by Ase & Zee -- "Two Flows, More Doe." If you Google "Two Flows, More Doe" the search results involve flowcharts, air filters and text flows.
A search for Maxamillion brings up results not about Mr. Warren but about the veteran Chicago artist. Mr. Warren has 32 Twitter followers under @Maxamilli317.
Young Ase's MySpace page features five songs, none of which has more than 56 plays. A video Young Ase posted in October has 88 views
So, how would Wiz Khalifa have heard "Pink N Yellow"?
Mr. Warren's Philadelphia-based lawyer James A. Cosby commented, "For now I can just say that Max has been writing songs, performing and recording for a number of years." Khalifa's management at Rostrum Records declined to comment.
According to Mr. Madison, "The classic way [to prove an artist has heard a song] is that to say it was on the radio or some music channel or through iTunes. The second way is chain of custody: The mixtape got handed around the club somewhere, or one of Wiz's people knows someone at the club, so he got handed a physical copy, or maybe someone mailed the mixtape to someone's people. That kind of argument shows up a lot of the time in movie cases. You have to be pretty detailed, but once in a great while you can actually show chain of custody."
"It would be a different story," Mr. Kikta says, "if these two gentlemen sat down and had lunch one day and talked about the song and he ran with it. He's going to have burden of proof."
The usual track of copyright cases is that they are settled before anyone knows about it. A representative at Mr. Cosby's office told the Post-Gazette Thursday that Mr. Warren attained a Pittsburgh lawyer and approached Atlantic Records when Khalifa's song became a hit in early 2011, but the label, which also is named in the suit, denied liability.
Mr. Warren, whose family owns the Quaker Steak & Lube chain, then found Mr. Cosby, and they chose to file the suit. The most likely outcome is a settlement.
"They very, very rarely go to trial," Mr. Madison says. "Like every other kind of lawsuit, the overwhelming majority of these claims either get settled or if the evidence for the plaintiff is really weak, they may end up in court and the defendant, in this case Wiz, may be able to persuade the judge to throw it out before it even gets to trial."
First Published January 6, 2012 12:00 am