Baby Shark, Do Doo, Getting Sued, Do Doo
The song that seems to be stuck in everyone’s heads may soon be stuck in court. “Baby Shark,” the children’s sing-along song that gained household popularity in 2018, may reportedly be the result of a copyright infringement.[1]
Johnny Only, a New York-based toddler music entertainer, claims he was the first to make the age-old chant into a children’s song back in 2011.[2] The original “Baby Shark” chant was made up of gory lyrics until Only decided to create his own lyrics and corresponding motions, which he published in a YouTube video.[3] The video that has made its way into popular culture, however, was uploaded to YouTube in 2015 by Pinkfong, a South Korean media company.[4] A re-uploaded version of the video, called “Baby Shark Dance,” had 3,582,743,497 views as of October 6, 2019.[5]
What remains a mystery is the origination of the “Baby Shark” tune. The traditional version, which essentially portrays dismemberment in a shark attack[6], has no identifiable author.[7] Some believe it began last century as a campfire chant, while others theorize it was borne from the Jaws franchise.[8] Regardless, because no one has ever stepped up to claim authorship, the work has reportedly become part of the public domain.[9] In other words, it can be freely copied and distributed without infringing a copyright.
The case was filed in the Seoul Central District Court, with the first hearing held in July.[10] SmartStudy, owner of Pinkfong, alleges that its version of the song was based upon original chant in the public domain.[11] Though Only admits that he also based his version upon that in the public domain, he notes that the South Korean company used suspiciously similar features, including the length, key, tempo, rhythm, instrumentation, and even a “splash” noise at the start of the song.[12] Interestingly, Only does not complain about the similar lyrics because of the unclear origin of the song.[13] So, it is not surprising that SmartStudy is defending itself by claiming that the Pinkfong version was solely based on the version in the public domain and not on Only’s.[14] Kevin Seunghyun Yoon, a SmartStudy marketing manager, explains that the company simply added “upbeat rhythms and fresh melody” to an old nursery rhyme to make the tune easy for children to sing along to.[15] Therefore, Only must prove that Pinkfong copied the unique elements of his version, of which he is the sole creator.[16] Only’s added elements, such as the instrumentality, are protectable via copyright on the basis that his version constitutes a derivative work.[17] He cannot claim protection for any portion belonging to the public domain chant, but he can claim protection for the elements that he independently contributed.[18]
The case will proceed when the Korea Copyright Commission reviews each version.[19] South Korea is a member of many international conventions regarding intellectual property, which allow a foreign party like Only to claim infringement.[20] While South Korea’s copyright regime is not a mirror image of the United States’—making the outcome of this case difficult to predict—both countries’ doctrines share many similarities.[21] Until the matter is resolved, we can all expect to keep singing along.
Footnotes
