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Beyoncé’s music video reproduced many unique elements from Petite Noir’s. In our view, elements reproduced constitute heart of Noir’s, which sets the general tone of the video, write Yashoda Rajoo, Melody Musoni and Lucien Pierce.
The much-awaited remake of The Lion King is finally out. Fans of all ages are flocking to movie theatres to watch it.
Meanwhile, Beyoncé, who plays Nala, has also released two new songs – Spirit and Bigger – which are inspired by the story of The Lion King.
However, fans are outraged as parts of Beyoncé’s music videos have been labelled as copies of Petite Noir’s compilation, La Maison Noir. The music video was directed by Rochelle Nembhard.
The question is: Did Beyoncé infringe on the copyright of Petite Noir’s music videos?
THE LAW
The South African Copyright Act 98 of 1978 protects copyright in cinematographic works. Section 6 of the act grants the owner of the work the exclusive right to reproduce the work in any manner or form, publish the work, perform the work in public, broadcast the work and cause the work to be transmitted in a diffusion service.
Where another person performs any of these rights without the copyright owner’s consent or permission, this could amount to copyright infringement.
There are two requirements that must be satisfied in order to prove that copyright has been infringed. The first is that there must be a causal link between the original work and the reproduction or adaptation. Second, there must be substantial similarity between the original work and the reproduction or adaptation.
WHAT DOES THIS MEAN?
A causal connection means that you must be able to prove that the original work was the source from which the alleged infringing work was derived. This is usually proven by way of circumstantial evidence.
With the internet and popular online sites such as YouTube, anyone with access to the digital platforms has access to billions of sound and video clips.
This makes it much more difficult for the infringing party to argue that they did not have access to the original work.
The substantial similarity test is a bit more complicated as there is no uniform consensus of the meaning of substantial similarity. It is only copyright infringement if a substantial part of the senior work (the original work) has been reproduced by the junior work (the infringing work).
There are many factors that need to be considered, and it can be difficult to determine whether the similarities between the works are substantial enough to constitute infringement.
In the famous UK case of Ladbroke (Football) Ltd v William Hill (Football) Ltd, Lord Reid held that the correct approach regarding reproduction of a substantial part of the work is to determine whether the plaintiff’s work as a whole is original and protected by copyright, and then to enquire whether the part taken by the defendant is substantial. In the Galago Publishers (Pty) Ltd v Erasmus case, which dealt with copyright infringement of a literary work, the court set out the meaning of objective similarity.
The court held that it must be shown that there is a sufficient objective similarity between the infringing copy and the original work for the infringing copy to be properly described, not necessarily as identical with, but as a reproduction or copy of, the original.
What case law tells us is that copyright infringement is not about the quantity of the infringement but rather about the quality of the work which has been reproduced. This kind of qualitative assessment pays more attention to those features that give the original work its unique or distinct characteristics.
To determine if the part which has been reproduced is of a qualitative nature, one needs to compare the junior work against the senior work.
Los Angeles Plays Itself, a documentary which looks at the way Los Angeles has been presented in movies, consists, almost entirely, of clips from films set in Los Angeles. For more than a decade, the documentary was not released simply because of how much it would cost to buy the licence to use the copyright-protected, cinematographic works. This is despite the fact that short clips were used from each film.
DID BEYONCÉ COPY PETITE NOIR?
Both videos are set in an African desert and display troupes of dancers in similar shades of red, green, blue and white clothes and fabrics. Dancers in Petite Noir’s and Beyoncé’s music videos have similar features, with stoic expressions. There are also a significant number of frames in Petite Noir’s video that feature him standing with a young boy next to him.
Beyoncé’s music video is similar to Petite Noir’s as it shows her standing next to her daughter. It invokes a similar feeling to the almost “parent-child” narrative in Petite Noir’s video. Finally, the overall impression of the videos, taking the background, cast, theme and colours into account, is that they feel almost identical.
When both music videos are played on mute, it becomes relatively difficult to differentiate which one is by Petite Noir and which is by Beyoncé.
By adopting the substantial similarity test, one can argue that Beyoncé’s music video reproduced many unique elements from Petite Noir’s. In our view, the elements reproduced by Beyoncé’s music video constitute the heart of Petite Noir’s music video and set the general tone of the whole music video.
It can be argued that this amounts to copyright infringement. What do you think?
Rajoo, Musoni and Pierce are lawyers at Phukubje Pierce Masithela Attorneys
