Guitar on stage

British musician Paul Rose is suing Irish super group U2 in the United States alleging the band copied “signature elements” of his song Nae Slappin’ in its 1991 hit The Fly.

According to Rose’s complaint, the U2 track lifts numerous elements from his jazz-fusion odyssey, including its ‘industrial-style’ percussion and ‘elaborate and distinctive’ guitar solo. Mr Rose is seeking $US5 million in damages from Bono and company, as well as their record label, Island Records.

Rose’s claim, lodged in the district court in Manhattan on February 27, 2017, is the latest in a series of American copyright suits which test the boundary between protection of originality and the chilling of musical creativity.

In 2016, Led Zeppelin successfully defended a claim that their magnum opus Stairway to Heaven lifted the intro from Spirit’s 1968 instrumental Taurus. In the preceding year, the estate of Marvin Gaye sued Robyn Thicke over his hit Blurred Lines, alleging that it infringed copyright in Gaye’s 1978 classic Got to Give it Up.

Will Rose succeed?

Under US law, the test for copyright infringement is whether there is ‘substantial similarity’ between the original and the alleged copy.  Like under Australian law, the test involves a qualitative rather than a quantitative assessment:  ‘Substantial similarity’ may still be found where the portion copied is small but nevertheless constitutes the ‘heart’ of the work.

In Rose’s case, commentators have stressed differences in melody, harmony, rhythm and lyrics (Rose’s song has none) and pointed to the fact that there is no direct sampling of Nae Slappin’ in The Fly. In this sense, Rose’s claim is comparable to the ‘Blurred Lines’ suit, which succeeded on the basis of similarities in ‘style’, ‘feel’, and ‘groove’ - despite noticeable differences in structure, chord progression and melody. Notably, the decision in that case has recently attracted criticism for its apparent failure to draw the (blurred) line between ‘permissible inspiration and unlawful copying.’

In Rose’s case, derivation is also likely to be a live issue.  Under US law, as under Australian law, the claimant must show that the infringing work was ‘copied’ from the original. Infringement will not arise where the work in question was independently created by the defendant. In this regard, Rose relies on evidence from a former Island Records employee, who says that his demo recording of Nae Slappin’ was on rotation at the label’s headquarters during the recording of Achtung Baby! – the U2 record which features The Fly.

Finally, Rose is likely to face an additional hurdle in the form of the statutory limitation period. Under US copyright law, civil actions must be commenced within three years of the alleged infringement, barring exceptional circumstances.

Mr Rose claims that he waited 26 years until after the original release of The Fly to bring his action because of concerns he might damage his career. He also cites the fact that crucial evidence only recently came to light, including the testimony of the aforementioned Island Records employee.

In the circumstances, Rose’s suit against Ireland’s favourite sons is likely to be an uphill battle. Let’s just hope his lawyers are willing to act pro Bono.

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