Pryor Cashman Partner Ross M. Bagley, who is a member of the firm's Litigation and Intellectual Property Groups, spoke with Thomson Reuters Westlaw Journal Intellectual Property Review about the public domain argument actor and musician Johnny Depp and guitarist Jeff Beck are making in defense of a copyright dispute over the poem "Hobo Ben."
In "Depp, Beck offer public domain argument in copyright suit over song lyrics," Ross notes that by staking out the position that the work is in the public domain, "The plaintiffs are acknowledging copying but challenging ownership because the work isn't original to the defendant."
The case, which is currently before the U.S. District Court for the Western District of New York, focuses on a song that appears on Depp and Beck's album 18, which SUNY Buffalo professor Bruce Jackson says infringes the copyright of his poem "Hobo Ben." The complicating factor is that "Hobo Ben" is based on a poem Jackson transcribed from a federal inmate named Slim WIlson in the 1960s; that original poem is part of an oral folklore tradition, which complicates the issue of ownership.
Ross tells the Intellectual Property Review that the case is not a straightforward copyright claim:
"The plaintiffs are acknowledging copying but challenging ownership because the work isn't original to the defendant," he explained. "To show ownership for a copyright claim, one must not only show the work was 'fixed in a tangible medium of expression,' but also that they added something original."
"If 'Hobo Ben' was handed down through an oral tradition, as Jackson seems to admit ... then he probably does not have any basis to stop Depp or Beck from using it or to compel them to attribute it to Slim Wilson or anyone else," Bagley said.
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