South Korea’s supreme court has rejected a US composer’s allegation that the producers of the catchy children’s song Baby Shark plagiarised his work, ending a six-year-long legal battle.
The court upheld two lower court verdicts in favour of Pinkfong, the South Korean company behind the tune with the famous “doo doo doo doo doo doo” refrain.
The Pinkfong song, released in 2016, has been phenomenally successful: it has spawned spinoff TV shows, movies and smartphone apps, making the company millions. Today, the Baby Shark Dance video is the most viewed on YouTube, with more than 16bn views, roughly double those of the runner-up, Despacito by Luis Fonsi featuring Daddy Yankee, and third-placed Wheels on the Bus by the children’s YouTube channel Cocomelon.
In 2019, the children’s songwriter Jonathan Wright – known as Johnny Only – filed a lawsuit in Seoul, claiming Pinkfong copied his earlier version of the original song, which is thought to have been around for more than five decades.
On Thursday, the court ruled that Wright’s version “had not reached a level of substantial alteration” from the original for it to be considered a separate work, which means it is not protected as a separate piece of work under copyright law.
Wright uploaded his version, which also includes the “doo doo doo doo doo doo” line, to his YouTube channel in 2011. The video features him and children doing a simple hand motion, resembling a shark’s mouth, to a bouncy beat.
In 2015 and 2016, Pinkfong uploaded its versions with cartoon sharks singing in Korean, and later released it in English with children doing choreographed dances, including the shark’s mouth hand gesture.
The South Korean company argued that its version was an arrangement of the same song, which it argued was in the public domain.
The song is thought to have originated in the US in the 1970s and been popularised at summer camps, with darker lyrics that ended with the shark killing the singer. Some theories suggest it was created in 1975, around the time Steven Spielberg’s film Jaws became a global box office hit.
Other versions of Baby Shark predate Wright’s video, including the French Bébé Requin and the German Kleiner Hai (Little Shark), which became a viral hit in Europe in 2007.
But none of them had the success of Pinkfong’s adaptation, which sparked viral social media moments such as the #BabySharkChallenge and reached No 32 on the Billboard Hot 100 chart.
Wright said he initially thought that “[Pinkfong] could go right ahead and use it” because the song was in the public domain.
But he decided to pursue a copyright suit when he learned that Pinkfong itself had threatened legal action against a South Korean political party, the opposition People Power, who had used Baby Shark in a political campaign.
“The wheels in my head start turning … Doesn’t that mean that my version also has copyright protection?” Wright told the Canadian Broadcasting Corporation in 2019.
Wright said Pinkfong’s version seemed “strikingly similar” to his, highlighting that the two songs had “same key, same tempo change, same melody and rhythm”. He demanded 30m won ($22,000/£16,000) in compensation.
The supreme court focused on whether Wright’s version could be considered a “secondary work” of the original children’s song, and whether Pinkfong had made its version based on his work.
It concluded that Wright did not make “edits or changes to a level” that could grant him a copyright as a secondary work. Even with the assumption that his version was a secondary work of the song, the court said that there were “no substantial similarities” between Pinkfong’s song and Wright’s version.
“All appeals were dismissed and the lower court’s rulings were upheld,” according to court documents seen by AFP.
The Pinkfong Company said in a statement on Thursday that the supreme court’s decision confirmed Baby Shark was “based on a traditional singalong chant that has entered the public domain”.
The company said it had given “a fresh twist to the chant by adding an upbeat rhythm and catchy melody, turning it into the pop culture icon it is today”.
