September 10, 2019 Musicology No Comments

Rarely am I anything but dismayed that my kids are getting older. I’m grateful though that “Baby Shark” was never playing on loop in my home. My kids were a few years too old to have gotten caught up in that. 

However, “Baby Shark” has been looping in the copyright news for a little while now. And I’ve most ignored it because, well, it’s Baby Shark, and a far cry from “Stairway To Heaven” which I would gladly examine every day and twice on Sunday rather than spend an hour on “Baby Shark.” Yet here we are.

Needn’t spend all day though, so super quick, if you’ve never had the pleasure, here’s the very viral “Baby Shark Dance” video on Youtube. You’ll be viewer 3.5 billion or so. Yes, literally.

Alright alright alright! You can thank the “Pinkfong” company for that. You can also root for a guy named Johnny Only to punish them a little for it. He’s suing them, claiming that Baby Shark is a ripoff of his own “Baby Shark. Try not to click. Go ahead and try.

Right. Okay. Before you say, “DUH, it’s exactly the same,” understand that everybody knows that already. “Baby Shark” previously unbeknownst to me has been around a long time. It’s the kind of thing that gets sung around the campfire at summer camp, like “Little Bunny Foo Foo.” And it’s not at all clear who “composed” it, nor is there a definitive original version of “Baby Shark.” 

When we say it’s been around a long time we mean decades; well before Mr. Only posted his version. Not surprisingly Pinkfong’s response to the lawsuit reportedly includes the claim that Baby Shark is in the public domain. So let’s start there.

I have a hard time with saying Baby Shark is in the public domain. Someone wrote it and likely not a hundred years ago, so although copyright laws vary around the world, “Baby Shark” isn’t old enough to quality. However, we also can’t quite imagine someone emerging with a credible claim to its creation. “Baby Shark” is what we call an “orphan work.” We don’t know to whom the copyright might belong. We don’t expect to learn.

So Pinkfong is right. But most likely none of that completely clears Pinkfong. This will be a derivative work copyright case. The deal there is that there are lots of versions of Baby Shark, and not all of which geared toward very young kids like this viral phenom. Campfire versions frequently include grisly verses where the sharks take you one limb at a time until you’re undergoing CPR and eventually die and go to heaven. I suppose where there’s a camp, there’s a lake, and there oughta be a horrifying song about the sharks that might get you.

Mr Only will argue that his kid friendly version is a derivative work and that the copyright for new elements not belonging to the original are his, and that Pinkfong’s work infringed upon those. Interestingly, Mr Only will agree with Pinkfong’s claim that “Baby Shark” is public domain, for if it were not public domain, Mr Only too would be an infringer of some mystery copyright holder’s work. 

This is a tiny bit like the Drake situation I wrote about just last week.

Will be interesting, sorta. Mr Only will have to show that his version contained some protectable originality and that Pinkfong heard it and copied it. What do you think?

Written by Brian McBrearty