Partner Ross Bagley recently sat down withWorld Intellectual Property Review to discuss the highly publicized lawsuit involving Johnny Depp and guitarist Jeff Beck, who have been accused of plagiarizing the copyright of "Hobo Ben," a poem by an unknown American black author that had been passed down through the generations.
According to Bagley,
This is an unusual case, because the plaintiffs are acknowledging copying but challenging ownership because the work isn't original to the defendant. If "Hobo Ben" was handed down through an oral tradition, as Jackson seems to admit, and he merely transcribed it, then he probably does not have any basis to stop Depp or Beck from using it or to compel them to attribute it to Slim Wilson or anyone else. This is also unusual because the alleged infringers commenced the action against the party claiming rights and because of the unknown origins of "Hobo Ben."
In regards to the potential implications of the case, Bagley notes:
If Depp and Beck prevail, it should strengthen the rights of artists to create new works using material that is not copyrighted or flows from the public domain without concerns that artists who have also drawn on such material can assert infringement claims.
Conversely, when an artist uses material like this, they may want to identify the cultural or folklore tradition from which it was drawn to avoid a charge of plagiarism. From a cultural perspective, this is reminiscent of cases filed in 2019 alleging that dance moves by Black performers, which may not have been protected by copyright, were being unfairly used in the videogame "Fortnite" without attribution or compensation.
The coverage this matter has received may have already achieved Jackson's goal of drawing attention to the history and source of "Hobo Ben". At the same time, the lawsuit filed by Depp and Beck may well confirm artists' rights to use works in the public domain or with an unidentifiable origin without risking liability under the Copyright Act.
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