Sally Yoon is an IPilogue Writer, IP Innovation Clinic Fellow, and a 3L JD Candidate at Osgoode Hall Law School.

Beyoncé's new album released on July 29, 2022, Renaissance, was the subject of a lot of backlash this month. Her song “Heated” was “ableist” and “offensive” from listeners for using the word “spazz,” and many more were heated about “Energy,” interpolated Kelis’ 2003 R&B favourite, “Milkshake.”

On August 8, 2022, Kelis was how she felt about Beyoncé’s use of her song, stating that she was neither notified nor asked for permission before the sample was used in “Energy.” Beyoncé fans Kelis for vocalizing this issue, saying that the singer should have just “been happy to be on the album,” but Kelis continued to voice the disrespect she felt by this act. In a viral Instagram story, she exclaimed, “from one artist to another, you should have the decency … to call reach out … a manager, an agent, anybody … even if you’re going to do it anyway.”

From a legal standpoint, lawyers have been clear that Beyoncé’s team their legal obligations. Artists only require permission from original composers and the record labels if they wish to borrow work, and unfortunately for Kelis, she didn’t fall within this category due to a contract she signed when she was nearly 20 years younger and did not fully understand. Kelis also that, back then, she was falsely promised that she would receive an equal split for the song.

Shortly after being publicly called out, Beyoncé the problematic sample from the song on versions available on several streaming platforms. She also removed the credits for Pharrell Williams and Chad Hugo, the creator and producer of “Milkshake” - a move to “manage ‘potential fallout’ from the public.” Kelis has no legal ground to stand on but her quarrel with Beyoncé illuminates a prominent and recurring issue in the music industry. Young artists continue to be pressured into signing contracts that they don’t fully understand, signing off rights that lead to catastrophic results later in their careers. We saw this with when she re-recorded some of her most famous albums in an attempt to own her own work. She stated, "This is what happens when you sign a deal at 15 to someone for whom the term ‘loyalty’ is clearly just a contractual concept. And when that man says, ‘Music has value,’ he means its value is beholden to men who had no part in creating it."

Moreover, contract with label and management company Love Renaissance was in the limelight late last year for its debilitating demands. The draft document harshly demanded that the singer “give up a chunk of all her non-musical earnings, even in areas like acting” and offered low advance payment and royalty rates in comparison to the standards then.

Often blinded by their ambition and pressured by the power imbalances with their labels, younger musicians need to ensure that they are securing their full rights at the time of music creation. This would require the artists to understand the individual actors that the musical composition would be split amongst, preferably a “split sheet,” where everybody’s contributions would be documented to avoid any confusion later down the road. Just a few minutes of extra due diligence in the recording room can spare an artist from losses decades into their career.

The post Giving off Bad Energy: “Milkshake” Sample Removed from Beyoncé’s Album “Renaissance” appeared first on IPOsgoode.

Fulk was allegedly by MS MR, a group signed to Columbia/Sony Records and therefore under the same label as Beyoncé, to direct one of their new videos. According to the filmmaker, Palinoia was then sent to multiple individuals working for the label, including Bryan Younce, senior vice-president for video production at Columbia Records. Younce, who had previously made videos for Beyoncé, asked for Fulk’s email five months before work on the Lemonade trailer began. He later asked the plaintiff for story boards and a development plan for the record label. The filmmaker claims that the access to his work explains “.”

How strong is Fulk’s case?

Like many copyright infringement cases, the outcome of this lawsuit will mainly depend on where the line between influence and copying is drawn. According to , the following must be proven in order to establish infringement: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. Proof of copying consists in two elements: (1) evidence of access to the plaintiff’s work and (2) probative similarities between the works. More importantly, the law only protects and not ideas themselves.

While some might be more about Fulk’s chances of winning this lawsuit, the filmmaker seems to have, at first sight, a strong case. In his complaint, the plaintiff mentions nine different instances where substantial similarities between the two works can be seen. These elements make up . The mentioned resemblances, with the proof of access to Fulk’s work, allow the burden of proof to be shifted to the defendant who will then have “.”

However, when taking a closer look at both parties’ work, one could easily argue that some of the similarities Fulk mentions in his complaint lie within the scope of non-copyrightable elements. This lawsuit could therefore end up like one of the most recent and similar cases to Fulk’s: .

After being by the agency 72andSunny for a potential Starbucks campaign and eventually declining a deal, Maya Hayuk, a muralist known for her use of colorful geometric patterns, sued the chain, claiming that their new packaging shared too many similarities with her own work. A month later, her complaint was tossed out by the District Court in Manhattan. The judge that “what the Plaintiff [had] described as the 'core' of her work in the aggregate, namely the use of overlapping colored rays, and colors and shapes, is tantamount to a set of unprotectable concepts or methods over which there can be no copyright monopoly conferred.” Ultimately, Hayuk’s work and creativity both rely on the use of “raw material” such as colors and geometric forms, which are part of the public domain. He later added that “the total concept and feel of the protectable expression of those ideas in the Hayuk Works and the expression of those ideas in the Frappuccino Works are not substantially similar.”

Unfortunately for Fulk, some of his claims do rely on the similarities between elements that might be deemed original. For instance, one of the nine scenes he mentioned include a shot of a person with their head down, next to graffiti. As mentioned previously, ideas cannot be protected under copyright law and showcasing a distressed character lying against a wall with their head down is most likely not original enough.

Fulk also mentions the similarity between the black-and-white title screens in both works. However, these screens have been used in multiple movies before (for instance, and , just to name a few). Moreover, as colors and fonts are considered "", Fulk’s title screens cannot be protected under copyright law.

As for more abstract similarities, the plaintiff's complaint mentions that both videos have a “heavy, dark and angst-laden” mood and that both works’ paces are “a rapid succession of short scenes or montage, interspersed with notable intermittent pauses through exaggeratedly slow scenes.” But just like for black-and-white title screens, “Palinoia” does not create a new genre. As have previously pointed out, even some perfume commercials are filmed and put together in the same manner. Proving that the substantially similar elements between Fulk’s “Palinoia” and Beyoncé’s “Lemonade” trailer are protected under copyright law might therefore be harder than it seems.

A potential court decision could be very enlightening in regards to the current state of copyright law. Realistically, the chances of this lawsuit ever making it to court are fairly low - most cases like this are settled out of court - as they are with involving visual arts.

Aicha Tohry is an IPilogue Editor and an Université de Montréal LLB holder.

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