Mike Love is a litigious guy. As the court in Love v. Associated Newspapers famously said, Mr. Love “wishes they all could be California torts.” Love v. Associated Newspapers, Ltd., 611 F.3d 601, 608 (9th Cir. 2010). While that case involved the unauthorized distribution of cds in the UK, Love’s latest legal scuffle is hitting a little closer to home, only this time, the target is Katy Perry.
Perry’s lyric at issue is situated towards the end of Perry’s hit single “California Gurls” where Snoop dog quotes the 1965 Beach Boys classic “California Girls,” stating: “I wish they all could be California girls.”
As of now, Love seems to be taking a neutral stance, but the actions of the company that own the rights to the song indicate otherwise. A spokesman for Rondor music recently stated: “We have established a dimunitive claim. It is up to the six writers and various publishers of ‘California Gurls’ to decide whether they want to honor the claim or not…using the words or melody in a new song taken from an original work is not appropriate under any circumstances, particularly from one as well-known and iconic as ‘California Girls.’” Should this scuffle blossom into a full-fledged lawsuit, both sides would have legitimate arguments.
Perry might argue that the “total concept and feel” of her work is different from that of the Beach Boys. While her song evokes many similar images (beaches, tan girls, palm trees, warm weather), the overall sound is completely different. Perry’s tone focuses on catchy synthesized hooks and the Beach Boys’ version focuses on their signature vocal harmonies. As a matter of policy, giving Love a copyright on these lyrics would significantly inhibit the ability of other artists to make music about girls from California, thus contravening copyright law’s goal of promoting creative expression (and to the chagrin of men everywhere, reducing the supply of music videos such as Perry’s, which feature girls that provocatively support her statements concerning California girl excellence).
Love might argue that while the songs sound completely different, Perry lifted the most important component from the original, namely the chorus. As Judge Learned Hand famously said: “no plagiarist can excuse the wrong by showing how much of his work he did not pirate.” Sheldon v. Metro-Goldwyn Pictures Corporation, 81 F.2d 49, 56 (2d Cir. 1936).
For now it seems that the ball is in Perry’s court, but whatever happens, men everywhere should cross their collective fingers that it doesn’t jeopardize the availability of the music video: