Benny Mardones, et al. v. Cyndi Lauper, et al.

Plaintiffs, authors of a “one-hit wonder” alleged that Defendants appropriated protectable expression from the hook of their song, which was worked into Lauper’s musical number that was incorporated into the popular Broadway show “Kinky Boots”. Defendants successfully transferred the case from California to New York, despite one of the Plaintiffs’ allegations of failing health.

The alleged similar musical expression as documented in the Complaint involves nothing more than a repeating three-note motive that Plaintiffs claim is the “hook” of both songs. Plaintiffs also note “similar lyrical phrases and themes” between the two songs: “If I could fly, I’d pick you up” (Plaintiffs’) and “If you hit the dust, Let me raise you up” (Defendant’s). But these “lyrical phrases” share only a common non-protectable idea, which can be expressed in many different ways, as demonstrated by these dissimilar instances.

The Complaint dwells at length on purported malfeasance by defendant Spirit Two Music, an independent music publisher that had agreed to administer the Plaintiffs’ songs. The Complaint states Plaintiffs also granted Spirit the “right and ability to enforce, protect and defend all rights in and to the compositions…” When Spirit disagreed with Plaintiff’s claim that Lauper’s number infringed theirs, Plaintiffs “insisted that Spirit honor its contractual and fiduciary obligations.” The Complaint never establishes the existence or extent of any such legal obligations, but makes much of the fact that Spirit also worked with Lauper (along with hundreds of other songwriters) whom it favored to the Plaintiff’s detriment.

It would have been interesting to see how these speculative and unsubstantiated claims would fare in court, but the case was settled in October, 2019.

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