In the Intellectual Wednesdays column, experts of the IP practice at Capital Legal Services examined a copyright dispute and denial of a claim for 117 million rubles against Philipp Kirkorov. The material is prepared by Elena Berger and Vladislav Scherbatykh.

Most of us know this feeling: you listen to a song, and suddenly realize that you have heard a similar melody before in a different singer’s song. If you search on the Internet, you will find vast collections of theories identifying which famous singers borrowed music and from whom they borrowed it. If you dig deep, you might even conclude that nothing original exists, and any work is a replication of earlier ones.

Is this true? And should intellectual property law combat the lack of originality in music?

On September 4, the Moscow City Court left unchanged the decision of the Tagansky Circuit Court on the dispute between Didier Marouani, as one party, and Philipp Kirkorov, as the other party (see case No.33-39092/2019). In the dispute, Didier Marouani (the plaintiff) claimed that the song “Cruel love” (written by Oleg Popkov and performed by Philipp Kirkorov) contained “borrowed”  material from the composition “A Symphonic space dream” by Didier. According to Mr. Marouani’s statement, Mr. Popkov “borrowed” the refrain of his song. 

When you listen to both songs, it actually seems that their refrains have a suspiciously similar melody. However, the court did not affirm that the defendants violated the plaintiff’s rights. What was the reason?

Copyright law does prohibit the use of other people's works without the copyright holder’s permission. In particular, it prohibits processing a work, i.e. creating a new work based on an existing one without such consent. Even parts borrowed from another person’s work with minor modifications could fall under this prohibition. This is what the plaintiff tried to prove, claiming that his song had been written and published earlier, and Mr. Popkov surely wrote his refrain based on the plaintiff’s refrain.

However, the court ruled against him. The court decision was based on the expert opinion of the Gnesin Russian Academy of Music. The main point of the opinion was as follows. Compositions as a whole differ significantly from each other; there are no coincidences in verses and other elements. The only similarity is found in the refrains. At the same time, according to the opinion, this can be easily explained since the refrains use the same extremely common musical stamp, which the opinion called the “golden sequence.”

As experts concluded in court, this means that the reason why the similarity appeared is not that Mr. Popkov took music from Mr. Marouani, but that they both used the same well-known stamp. In such case, there is no copyright violation, as the plaintiff cannot have any exclusive rights to musical means.

Obviously, the court denied the claim because copyright to widespread stamps and means is not protected. This seems to be a proper approach in terms of copyright objectives. One of the objectives of copyright is to protect the author who created something new through their creative work, from the result of their work being borrowed without their permission. At the same time, copyright does not set a goal to punish for accidental and unintended coincidences that do not relate to direct and intentional borrowings.