Comment by Charles Cronin

This case is factually akin to Peters v. West, in which the plaintiff claimed that defendant, rap singer Kanye West, infringed his copyright by having used the same public domain expression as the plaintiff had used in an earlier work.  The only similarity between the songs in question in the instant case is their use of “XO”, the commonplace shorthand for “hugs & kisses” (actually “kiss & hug”) – a sort of alphabetical emoticon.  Although this commonality was not the basis of the plaintiff’s stated claim, it was undoubtedly what provoked his sense of having been wronged. (The threshold for such provocation tends to be especially low when the purported perpetrator is as successful and wealthy as Beyonce.)

The plaintiff claimed that the defendant Beyonce had direct access to his song “XOXO” shortly before she created her song “XO”.  If so, it is reasonable to conclude that the plaintiff’s use of the term prompted Beyonce to incorporate it into her song.  In other words, Beyonce likely “copied” the defendant’s work, just as defendant “copied” thousands of works created earlier than his, and in various media, that used the term “XO”.  Even if the plaintiff had been the first to use this term in a pop song, because he did not create the term, copyright does not provide him the right to monopolize it in any expressive genre.

An analogy in the visual arts might anchor this point.  Dozens of artists have reproduced Leonardo’s Mona Lisa in creating derivative works.  The fact that Marcel Duchamp’s ministrations involving Leonardo’s work preceded those of Salvador Dalí  does not mean Duchamp could have prevented Dalí’s use of the same image. Dalí, in turn, could not have prevented Andy Warhol’s use of the same image that Dalí had appropriated earlier.

In any event, while the shared use of “XO” undoubtedly provoked the plaintiff to pursue this claim, the plaintiff’s infringement claim was based on purported musical similarities between the openings of the two songs.  Apart from the inconvenient fact that the plaintiff did not own the copyright in the music of the complaining song, the court sensibly, and authoritatively, dismissed the plaintiff’s assertion finding “little, if anything, in common between [the music] of XOXO and XO.”

Opinion by Judge Engelmayer: (PDF)