[Law & Story] Why the "Baby Shark" Song Was Ruled Not to Be Plagiarism

Pinkfong Baby Shark (Sang-eo Gajok) Musical Poster.

In Choi Seok-jin's Legal Stories, we aim to cover various issues revolving around the legal community, focusing on courts and prosecutors. We plan to write somewhat freely on topics such as the legal points or prospects of major cases, behind-the-scenes stories, and untold anecdotes without being bound by specific themes or formats. Today’s fourth story is about the recent first-instance verdict in the 'Baby Shark' copyright lawsuit.

[Asia Economy Legal Correspondent Choi Seok-jin] 'Baby Shark doo doo doo doo doo doo~ Cute doo doo doo doo doo doo~'

Any parent who has raised a child has probably sung along to this song at least once ? the Shark Family (Baby Shark).

Last week, the court delivered the first-instance judgment in a lawsuit disputing whether the Baby Shark song infringed copyright.

Jonathan Robert Wright, an American children’s song composer who performs under the stage name Johnny Only, filed a damages claim lawsuit in March 2019 against the domestic company SmartStudy Inc., which created Baby Shark.

The claim was that the Baby Shark song plagiarized his 2011 single "Baby Shark," which he arranged from a North American traditional camp song and released on iTunes.

However, after a trial lasting two years and four months, the first-instance court ruled against the plaintiff. Since Johnny Only was ordered to bear all litigation costs, it can be considered a complete victory for the domestic company.

Shark Family is a children’s song released in 2015 by the domestic educational startup SmartStudy through its early childhood education content brand Pinkfong.

Due to its highly catchy chorus, it gained immense popularity, even reaching the US Billboard Hot 100 main singles chart. The dance video accompanying the song (Baby Shark Dance) currently holds the record for the most views on YouTube, exceeding 9 billion views.

Johnny Only claimed damages of 30.1 million KRW plus delayed damages from June 29, 2018, onward, alleging partial harm from copyright infringement. Had the Baby Shark song been recognized as plagiarism, additional damages and ongoing royalty payments for future use of the song would have been required.

Key Copyright Law Provisions Related to This Case

To help understand the case, here are some relevant copyright law provisions.

Johnny Only argued in court that his song "Baby Shark" is a 'derivative work' created by adding new accompaniment and changing harmonies to the existing traditional folk song.

Copyright law protects foreign works according to treaties Korea has joined or concluded. Especially, works by foreigners residing permanently in Korea or first published in Korea receive the same protection as domestic works (Article 3).

Copyright law defines derivative works as creations made by translating, arranging, modifying, adapting, producing videos, or other methods based on original works, and protects them as independent works (Article 5).

The protection period for copyright property rights is generally 70 years after the author’s death (Article 39).

A person whose copyright has been infringed can request cessation of the infringement and, simultaneously, disposal of infringing items or other necessary measures. The copyright holder may also apply to the court for temporary suspension of the infringing acts or seizure of infringing items, but if a later ruling finds no infringement, the copyright holder must compensate for damages caused by such measures (Article 123).

A person whose copyright has been infringed can claim damages against the infringer, with the primary standard being the infringer’s profits, which the law presumes as damages. The copyright holder can also claim damages based on the amount normally receivable when exercising the infringed rights. If actual damages exceed this amount, the copyright holder can claim compensation for actual damages but must prove the damages resulted from the infringement. If the copyright is registered, negligence by the infringer is presumed (Article 125).

The Korea Copyright Commission is the institution designated by copyright law to deliberate on copyright matters, perform copyright registration tasks, and mediate or arbitrate copyright disputes (Article 112). The commission consists of 20 to 25 members, including one chairperson and two vice-chairpersons, elected from among the members. Members are appointed by the Minister of Culture, Sports and Tourism from experts in copyright-related fields from universities or recognized research institutions, judges, prosecutors, lawyers, public officials of grade 4 or higher with practical experience in copyright or cultural industries, executives of copyright or cultural industry-related organizations, and persons with abundant knowledge and experience in copyright or cultural industry-related work (Article 112-2). The commission may conduct appraisals for courts or investigative agencies upon request for copyright infringement investigations for a fee (Article 119).

Reasons the Court Ruled No Plagiarism… Korea Copyright Commission Rejected All Five Grounds Presented by Plaintiff

The presiding judge of the Seoul Central District Court Civil Division 208, Chief Judge Lee Jeong-kwon, ruled on the 23rd, "The plaintiff’s claim is dismissed. The plaintiff shall bear the litigation costs," resulting in a ruling against the plaintiff.

The court judged that the song created by plaintiff Johnny Only did not exhibit new creativity distinguishable from the underlying traditional folk song and thus could not be considered a derivative work.

A decisive factor influencing the court’s judgment was the appraisal result from the Korea Copyright Commission.

Johnny Only presented five grounds arguing that his song should be regarded as an independent creative work distinct from the traditional folk song. He also requested the defendant SmartStudy specify differences between Baby Shark and his song. However, the commission, which was entrusted by the court to conduct the appraisal, rejected all of Johnny Only’s claims.

First, Johnny Only emphasized that he added new accompaniment not present in the traditional folk song. He claimed that the defendant used this added accompaniment as is to create and release the Baby Shark song, thus infringing his copyright.

The commission concluded, "It is difficult to view the plaintiff’s song as expressing the traditional folk song by adding new accompaniment, so creativity is absent."

Comparing Johnny Only’s song with the 2001 version of the traditional folk song, the commission found that rather than adding new accompaniment absent from the folk song, the plaintiff merely expressed the same or similar accompaniment while adding instruments such as electric guitar and synthesizer pad sounds.

The 2001 folk song version consists of a simple pattern of bass guitar and acoustic guitar playing three repeated chords 'C-F-C-G' with a drum rhythm pattern. Johnny Only’s song uses computer-based arrangement with drum sample sounds forming a disco (house) genre rhythm and employs bass guitar, electric guitar, and synthesizer sounds, but the chord progression remains the same 'C-F-C-G' as the folk song, according to the commission.

Second, Johnny Only argued that he established the first designated note as 'Re' (D), determined the overall melodic scale, and specified the number of notes, which he claimed as new creative elements.

However, the commission stated, "The overall melodic scale is determined by the key, so setting the melodic scale and specifying the number of notes cannot be considered a creative expression protected by copyright."

Furthermore, the commission noted, "When converting the plaintiff’s song to the key of C major, the first note is 'Sol' (G). The 2001 folk song version also fixes the first note as 'Sol' in C major. Therefore, the plaintiff’s fixation of the first note is not a new creative element," rejecting Johnny Only’s claim.

Third, Johnny Only claimed that he designated the key as G Major based on the folk song framework, structured the harmony progression as 'G-C-Em-D' to create a bright and lively atmosphere, and from the 29th measure changed it to 'Ab-Db-Fm-Eb' to express a rising tempo and intensifying mood, which he argued was new compared to the folk song.

But the commission explained, "Although composers designate a specific key when creating a song, the key can vary depending on the singer. Therefore, designating the key as G Major does not add creativity."

It added, "The number of harmonic progressions is limited, and it is common for performers to choose and sing different harmonies, so harmony progression itself is not recognized as creative."

The commission pointed out that the 2001 folk song’s harmonic progression is 'A-D-A-E', which converts to 'C-F-C-G' in the key of C. The plaintiff’s song progression is 'G-C-G-D', which also converts to 'C-F-C-G' in C key. Thus, the harmonic progressions are identical, and changing the progression does not add creativity.

Fourth, Johnny Only argued that unlike the folk song, his song uses disco-style drum patterns throughout, employing drum sample sources mainly used in electronic genres from the introduction to the coda, which he claimed as creative.

The commission responded, "The drum sample sources used by the plaintiff are widely used by many musicians." It added, "The plaintiff arranges the song in disco genre using drum samples, and disco rhythms are commonly used in dance-style arrangements in popular music."

The commission further noted, "The plaintiff’s song is arranged in a very ordinary style with a four-beat measure where the bass drum hits on every beat, and the snare or clap sounds on the second and fourth beats," concluding that creating disco rhythm based on drum sample sounds is not a creative element.

Finally, Johnny Only claimed that his arrangement, which starts with only drums, bass guitar, and vocals, then adds electric guitar and vocal harmonies from the fifth measure, should be considered a new creative work.

This was also rejected by the commission.

The commission concluded, "Arranging with instruments not present in the 2001 folk song version and the expression of adding electric guitar and harmonies after the initial measures with only drums, bass guitar, and vocals lack creativity."

It explained, "The first four measures consist of drums, bass guitar, and vocals, then electric guitar and harmonies are added from the fifth measure, which is a commonly used method and does not add creative elements."

It added, "Typically, arrangements complete the music by using various instruments on the composed melody. To reduce monotony in repetition, various techniques are used, one of which is gradually adding instruments to fill the sound."

Ultimately, regarding the copyright validity of Johnny Only’s song, the court concluded, "Considering the Korea Copyright Commission’s appraisal entrusted by this court, the evidence submitted by the plaintiff is insufficient to recognize new creative elements added to the traditional folk song, and there is no other evidence to support this."

Differences Between Baby Shark and Johnny Only’s Song… "No Substantial Similarity Recognized"

The court not only concluded that Johnny Only’s song lacks new creativity distinguishable from the traditional folk song and thus cannot be recognized as copyrighted, but also ruled that even assuming it is a derivative work, there is no substantial similarity between the defendant’s Baby Shark song and the plaintiff’s song, so copyright infringement is not established.

This judgment was also based on the commission’s appraisal results.

The commission noted, "The defendant’s song (Baby Shark) features a different chord progression in the prelude, 'Gm-C-Em-D' (which becomes Cm-F-Am-G when transposed to C key), distinguishing it from the plaintiff’s song."

It also stated, "The defendant’s song fixes the first designated note as 'Re' (D) and specifies the overall melodic scale and number of notes, but as explained earlier, fixing the key is not a creative element protected by copyright, and the melodic scale is determined by the key. Therefore, no substantial similarity can be recognized."

The commission added, "The defendant’s song is set in G Major. The harmony after the prelude progresses as 'G-C-Em-D' and changes to 'Ab-Db-Fm-Eb' later to express a rising tempo and intensifying mood. However, designating the key as G Major does not add creativity, and the harmony change is unique to the defendant’s song, differing from the plaintiff’s."

The commission regarded Johnny Only’s song as disco genre and Baby Shark as house dance genre, concluding the arrangements differ.

It explained, "Although the defendant’s song uses drum sample sounds like the plaintiff’s, these are widely used. The defendant’s arrangement features piano (acoustic piano sound) comping rhythm, making it closer to house dance than disco, so substantial similarity cannot be recognized."

Finally, the commission emphasized, "the defendant’s song is arranged using computer-based techniques with drum samples, bass guitar, electric guitar, synthesizer strings, and piano sounds. While the defendant’s song uses drums, bass guitar, and electric guitar as core instruments like the plaintiff’s, it adds synthesizer strings and piano, and from the fifth measure, female vocals and chorus are dubbed with drum hi-hat and electric guitar added, differing from the plaintiff’s song."

The commission concluded, "Even if some creative elements are recognized in the plaintiff’s song, those parts differ entirely from the defendant’s song, so substantial similarity cannot be acknowledged."

Based on this appraisal, the court also concluded, "The plaintiff’s claims based on alleged copyright infringement by the defendant cannot be accepted without further examination."

Plaintiff’s Withdrawal of Lawsuit and Defendant’s Objection… "A Ruling Establishing Standards for Creativity and Substantial Similarity in Works Using Traditional Folk Songs"

Johnny Only submitted a fact inquiry request to the Korea Copyright Commission on May 6. On June 8, the commission’s chairperson submitted a fact inquiry response.

After confirming the commission’s conclusion that Johnny Only’s song cannot be regarded as a 'derivative work' with new creativity added to the traditional folk song and that the defendant’s copyright infringement cannot be recognized, Johnny Only filed a lawsuit withdrawal on June 17, judging there was no chance of winning by prolonging the trial.

However, on the same day, the defendant submitted an objection to the withdrawal.

Kim Kyung-hwan, lead attorney at Law Firm Minhoo representing defendant SmartStudy, explained the reason for not agreeing to the withdrawal was, "We wanted to clearly record that there was no copyright infringement."

Attorney Kim evaluated the ruling as "a judgment that sets standards for creativity and substantial similarity in cases involving works based on traditional folk songs."