Copyright challenge pushes ‘Baby Shark’ toward dangerous waters
While new to most listeners in Korea, the viral hit children’s song “Baby Shark” that has taken North America by storm in recent weeks is actually quite familiar to many people living in the United States and Canada. The song’s success is attributable not only to it being an earworm, but also because it is based on a familiar campfire song that has been sung by kids for many years. The unknown origin of the song is also why nobody has claimed ownership of the song, and has led to the many different variations of the song over the past few years.
The Korean version of “Baby Shark,” produced by educational brand Pinkfong, has proven to be the most successful. Originally released in 2015, the song introduces a family of sharks and comes with its very own hand motions.
The music video of the English version of the song on YouTube has over 2.2 billion views as of Monday, and the song made a surprise landing at No. 32 in Billboard’s Hot 100 chart early this month. This came as a surprise to many, considering that only a few big-name K-pop stars - including Psy, Wonder Girls and BTS - have been able to land on the competitive U.S. music charts.
But not everyone is enjoying the song’s success. A children’s music performer named Jonathan R. Wright, who goes by the stage name Johnny Only, filed a complaint to the Seoul Central District Court on Oct. 22, 2018 against SmartStudy, the Korean education company that owns Pinkfong, and demanded five million won ($4,463) as compensation for plagiarizing his song.
Only claims that he is the originator of “Baby Shark.” About 20 years ago, Only was a D.J. at a children’s camp and he saw how engaged the children were with the traditional “Baby Shark” song, excitedly doing the hand gestures that famously go along with the song. He made and released his own version of the song for children back in September 2011.
“The Doo doo doo doo doo doo chorus [of the song] was perfect for a child learning how to speak,” he said in an interview with Canada’s CBC Radio on Jan. 24. “But the lyrics were completely inappropriate, having the centerpiece be a shark attack [...] So I simply re-wrote the lyrics [and] took out the shark attack, so now the centerpiece of the song became the family. As far as I can tell on the internet, I was the first one who did that. Basically, Pinkfong’s version does the same thing.”
SmartStudy, on the other hand, claims that their song has not plagiarized Only’s version because “it is a remake of the original campfire song, which nobody claims ownership of.” The song was simply “adopted, rearranged and the lyrics were changed” from the original song.
The first hearing for the case will take place Thursday, and whether Pinkfong and Only can both claim copyright over their songs, and if Pinkfong’s song infringes on the copyright of Only’s song will be argued.
Under Korea’s Copyright Law, someone’s original “work” is defined as a “creative production in which the ideas or emotion of human beings are expressed.” That is, in order to be qualified as an original work, the song must involve the song producer’s “creative expression.”
According to lawyer Sin Jong-beom from the law firm Nulim, even if the work is a remake of an original song, “parties can claim copyright over their derivative works if that work has its own creativity applied [in their new song] after going through enough revisions and modification [from the original work].”
But the derivative work cannot be protected under copyright law if it turns out to be very similar to the original work, even though it has gone through enough revisions.
Whether or not Pinkfong’s song has infringed on Only’s song, therefore depends on whether Only’s song has its own creative expression applied to make it distinct from the original.
According to Prof. Chung Yeun-dek of Konkuk Law School, although the definition of “creative expression” depends on how Korean judges interpret it based on precedent, the general definition is, “something new that has not been copied from others.”
“The party who created the song first usually has the copyright priority,” he says. “If a person used a new expression, [for instance, the word ‘father shark,’] in his or her remake, then that person has copyright only over that specific expression. However, the person has no authority over the rest of the song.”
Only, therefore, must be able to prove that certain expressions in his song are original to him and have been copied word-by-word by Pinkfong.
Prof. Chung adds, “Pinkfong, meanwhile, could claim that both of their songs have been copied from the original. In that case, neither one would have ownership over the copyright. Pinkfong could claim that their songs do not have enough creative expression from the original song. But ultimately, everything depends on how the Korean judges interpret the case.”
BY YEO YE-RIM [email@example.com]