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Chicago IP Litigation Tracking Northern District of Illinois IP Cases

Elton John’s “Nikita” Does Not Infringe Copyright in Song “Natasha”

Posted in Pleading Requirements

Hobbs v. John a/k/a Sir Elton Hercules John, No. 12 C 3117, Slip Op. (N.D. Ill. Oct. 29, 2012) (St. Eve, J.).

Judge St. Eve dismissed plaintiff’s copyright and related state law claims against Elton John, Bernard Taupin and Big Pig Music (collectively “defendants”). Plaintiff argued that his copyrighted song “Natasha” inspired by his romantic involvement with a Ukranian waitress during the Cold War in the 1980s was infringed by defendants’ song “Nikita.” Copyrighted a few years later, “Nikita” allegedly describes a love affair between a Western man and an East German woman during the Cold War. Defendants argued that the songs were not substantially similar under any set of facts and, therefore, the case should be dismissed. The Court considered the lyrics of the songs pursuant to Fed. R. Civ. P. 10(c) because they were referenced in the complaint and because plaintiff did not object to the Court’s consideration of the lyrics.

The Court held that the lyrics were objectively not substantially similar for at least the following reasons:

• An impossible Cold War-era love affair, a postal theme, and references to a woman’s pale eyes were not protectable because they were “rudimentary, commonplace, and standard under the scenes a faire doctrine.”

• The Court listed several songs that included Cold War-era love affairs from the early 1980s – Devo, “Cold War,” http://www.lyricsfreak.com/d/devo/cold+war_20039646.html (“I heard it said that all is fair, In love and war so what’s life for, The boy and girl, Two separate worlds, The endless tug of war, Uh!”); David Bowie & Brian Eno, “Heroes,” http://www.lyricsfreak.com/d/david+bowie/heroes+single+version_20962708.html (“I, I can remember (I remember), Standing by the wall (By the wall), And the guns, shot above our heads (Over our heads), And we kissed, as though nothing could fall (Nothing could fall”)).

• Additionally, the postal and pale eyes themes were expressed differently in each song.

• The use of the word “never” and the phrases “to hold you”, “you’ll never know”, “you will never know” and “I need you” were not protectable because they were not unique.

• Titles are not protectable. So, the fact that both songs had “one-word, phonetically-similar title[s] consisting of a three-syllable Russian name, both beginning with the letter ‘N’ and ending with the letter ‘A’” was not relevant to the Court’s analysis. Furthermore, both names – Natasha and Nikita – were common names and a “quick search” of the Copyright Office’s registration database showed other songs titled “Natasha” and “Nikita”.

• The Court also noted that repetition of the name of a love interest in a song was common, citing Lola and, a personal favorite of mine, Roxanne.

Once the Court filtered the non-protectable elements of each song, it found no similarities between the songs. And plaintiff’s state law claims were preempted by the Copyright Act.