This is the question being presented in a lawsuit pending in the Southern District of New York against the iconic band U2 and a majority of its band mates. Paul David Hewson (more well known as lead singer Bono), David Howell Evans (more well known as guitarist extraordinaire the Edge), drummer Laurence Joseph Mullen Jr., and bassist Adam Clayton were all named as defendants in the Amended Complaint filed by British recording artist Paul Rose (“Rose”) in June of this year. He contends that U2’s The Fly from the 1991 Atchung Baby album ripped off his musical composition Nae Slappin.
Rose contends he dropped off a demo tape at Island Records. U2 recorded at Island Records and allegedly listened to the demo tape. Both Rose and U2 were often in the Island Records offices. Rose claims that the renowned guitarist The Edge changed his approach to guitar playing after hearing Rose’s work.
Rose claims that the lyrics of The Fly concede that U2’s new musical sound and direction was not really new. As the great Bono sings: “Every artist is a cannibal, every poet is a thief.” Rose contends that this rings true with U2.
In its recently filed motion to dismiss, the iconic band argues that Nae Slappin is a different animal than The Fly. Rose’s “Nae Slappin is essentially an extended guitar solo consisting mostly of multiple guitar tracks, with percussion accompaniment.” “There are no vocals, no lyrics, no subject, and no theme.” It is experimental and acts as a vehicle for Mr. Rose to showcase his guitar skills. In stark contrast, U2’s The Fly is a “‘song’ in the true sense of the word, with everything that comes with it: vocals, lyrics, a subject and a theme.” “‘The Fly’ is a direct reference to ‘The Metamorphosis’ by Frank Kafka, in which the protagonist changes overnight from a travelling salesman to a giant insect, or fly.” I must admit I did not like the movie with Jeff Goldblum and Geena Davis that is based on Kafke’s novella. However, it looks like I was in the minority as Rotten Tomatoes shows a 91% rating by critics and 83% rating by audiences. I might have to re-watch the movie now that I am an adult. But, I digress.
While writing this blog post, I watched an old YouTube video of U2’s song for the first time. See below.
I liked the song (and the video).
The standard for determining copyright infringement is whether the “total concept and overall feel” are the same. U2 alleges that the two works: The Fly and Nae Slappin do not meet this standard. The band accuses Rose of parsing the two works. For example, he points to a 7-second clip from Nae Slappin and a 12-second clip from the band’s The Fly. Rose also asserts claims about the “percussion” or a “beat” that the band claims is inappropriate. Relying on previous case law, U2 asserts that the beats alone “are too common of a musical technique to be protectable.” Further, U2 complains that there cannot be protectable expression in a “chord change” from “E7 to A7.”
U2 asserts that “musical ideas” are not protectable—only “artistic impressions.” Accordingly, U2 contends that Rose’s Amended Complaint should be dismissed.
U2 also argues that Rose waited too long to bring this lawsuit. He waited 25 years. We will have to see how Rose counteracts this argument. In his Amended Complaint, Rose asserts that he has a “witness who had provided the Rose demo tape to the Island Records executives,” who had only come forth recently because she was previously concerned about losing her job. This may be a reason Rose will assert that he waited.
Rose asserts an equitable claim for right of attribution and writing credit for The Fly. U2 contends that this claim is really a claim for ownership of the copyright which is barred by the three-year statute of limitations. This is different than laches (you waited too long). Rather, a statute of limitations cuts off your right to make a claim (except if there are tolling arguments, fraud or the like).
Will U2 prevail on its motion? Will U2 play The Fly when the iconic band comes to Minneapolis to play at the US Bank stadium in September?