“Baby Shark” Faces Adult Lawsuit

This post is guest authored by Bronte Story, a rising third-year law student at SMU Dedman School of Law. Bronte is one of our summer legal interns here at Maddrey PLLC, and we are happy to present this article. As always, I have reviewed this post for its legal and factual conclusions – Thomas Maddrey

Copyright Infringement Bites

South Korean company SmartStudy is being sued for copyright infringement of hit song and online phenomena “Baby Shark.” The song was produced in late 2015 by a children’s entertainment company, Pinkfong, of which SmartStudy is a parent-company to. The video content accompanying the song was uploaded to YouTube by Pinkfong in November 2015 and now has over 3 million views. The song has gained so much attention and success that in June 2019 Nickelodeon announced it was partnering with SmartStudy to create an animated TV show based off the hit song.

So, why is “Baby Shark” being taken to court? As many may know, the song “Baby Shark” is often used as a kid’s summer camp singalong song but has lyrics that are a bit more gruesome than the Pinkfong version. The fireside camp song includes phrases like “lost a leg do do do do do do do” and mentions other lost limbs as the song continues. However, there was an aim to make the catchy tune more toddler-friendly, but Pinkfong wasn’t the only one pursuing this idea.
Child entertainer, Johnny Only, claims that he was the original creator of Pinkfong’s kid-friendly version of “Baby Shark.” Only claims that he has been performing his version of “Baby Shark” for almost two decades and says he’s been ripped off by Pinkflong. Only has a published version of the song that was uploaded to YouTubein 2011 that features Only and a group of children singing along to his version of “Baby Shark.” Only’s video has a little over 100,000 views, but lack of popularity has not stopped Only from pursuing the infringement claim.

Background in the Courts

The first hearing in this case took place in South Korea at the Seoul Central District Court in July and the Korea Copyright Commission is set to review and compare the songs before the case continues. Although the litigation is taking place in South Korea, Korean copyright lawhas similar principles to those in the U.S., not to mention its participation in international agreements including the Berne Convention. In addition, SmartStudy’s main argument stems around the idea that the creation of the Pinkfong “Baby Shark” song is based on a traditional singalong song which is public domain. This public domain argument would be similar to any made in U.S. courts in a copyright infringement case similar to this one.
To provide context, owners of a copyright have exclusive rights to reproduce, distribute, display, copy, create derivative works, and perform their works. However, copyright duration only lasts so long. Once a copyright expires, it becomes public domain, and once a work is in the public domainit can be used as a basis for further creativity among artists. This is why music that is classified as traditional folk music or religious hymns are considered up for grabs for artists to use because they are part of public domain. For example, songs such as “Amazing Grace” and “Silent Night” are public domain.
The idea of classifying these types of songs as public domain is to prevent any one person from holding copyright protections in music that has been passed down from a time that would “clearly indicate that any responsible copyright term has expired.” So, SmartStudy’s argument may have some merit when they argue the creation of “Baby Shark” stems from use of a song that was in the public domain because it has been passed down over and over again through many camp-style versions. If a court decides the song is part of public domain, Only may have no claim against SmartStudy since both versions of the song derive from the summer camp traditional singalong and the case will likely be settled or dismissed altogether. The only thing that’s certain at this moment is that both SmartStudy and Only have copyright protections in their own versions of the camp singalong “Baby Shark,” and that’s really the only thing either party can truly protect. Whether or not SmartStudy had access to and decided to take from Only’s version of “Baby Shark” is a future determination for a court to decide.

About the Author
Thomas Maddrey is the founder and managing partner of Maddrey PLLC. Prior to attending law school, Tom was a commercial photographer, entrepreneur, and gallery owner. His work in both the arts and as a business owner has given him a unique perspective on the needs of owners and creatives, as well as an understanding of the obstacles they face.
Learn more about Thomas Maddrey HERE.