11/19/2019
BABY SHARK: THE COPYRIGHT THROW-DOWN
K-pop - the Korean culture wave many of us know through “Gangnam Style” - brought us that earworm your kids are singing. “Ba-by SHARK dee dee dee-dee-dee…” It has been micro-engineered for maximum catchiness. It worms its way into your brain and stays.
There are nuclear warhead detonators that have been engineered with less precision than K-pop hits like “Baby Shark.” No doubt somewhere scientists in white lab coats performed incisional studies on this tune to make it stick, to make your kids play it again and again, to keep those YouTube hits coming.
It is now being merchandised on a huge scale, and of course, there is an intellectual property battle.
Where did “Baby Shark” come from? Who, if anyone, owns this suddenly valuable piece of insanely marketable property?
Baby Shark has been sung around campfires for decades. Think “Row Row Row Your Boat,” except with lots of gore and dismemberment. Endlessly adapted, repeated, origins unknown, part of the public domain.
On September 1, 2011, a New York based children’s entertainer by the stage name of “Johnny Only” performed and published a version of Baby Shark, advertised on YouTube as the “non-dismemberment version.” A little over a hundred thousand views, but purchasable on Amazon and iTunes.
Take Johnny Only’s version, put it through the K-pop engineering machine, and you have the 2015 hit released by South Korean startup Pinkfong, which as I write this has been viewed billions of times and probably repeated by your kids even more. Its main clip (and there are countless spinoffs) is one of the most viewed videos on YouTube. Pinkfong’s parent company SmartStudy has incorporated a US subsidiary and now the tune is poised for a worldwide concert tour.
Enter the copyright battle. But Johnny Only didn’t start it.
The conservative South Korean Liberty Korea party used the tune in 2018 election rallies. Upon hearing about this, SmartStudy sent a takedown notice and threatened legal action, claiming it (via Pinkfong) owned protectable intellectual property in the song. Then, by way of defense, the Liberty Korea party went out and obtained a license from Johnny Only, and claimed he owned the intellectual property.
His interest no doubt piqued, Johnny Only got involved in the fracas. In October 2018, he filed a legal action in South Korea against SmartStudy (via the South Korean attorney K.S. Chong, who previously represented Psy of “Gangnam Style’), claiming infringement of his protectable unique arrangement of Baby Shark.
The pleadings in the Korean legal action have not (so far as I’m aware) yet been translated into English. But it appears SmartStudy has been backed into the corner of claiming that Baby Shark is unprotectable public domain, and at the same time that it has a protectable unique version of the earworm tune.
An artist can take a work from the public domain, add unique flourishes to it, and create a protectable work out of this adaptation. Is SmartStudy infringing upon Johnny Only’s uniquely protectable work, or has it created its own ridiculously catchy derivative?
A South Korean judge is going to have to pore over, in excruciating detail, the similarities between the two versions’ arrangements, notes, lyrics, beats, ad nauseum, and come up with a ruling. And you think *you’ve* heard Baby Shark enough...
Whoever owns the rights, Baby Shark is coming soon to a megaplex near you. Now excuse me, I’m heading to Amazon for some knock-off Baby Shark stocking stuffers.
