'Baby Shark', Derived From A Public Domain Folk Song, Now The Subject Of A Copyright Dispute

from the shark-attack dept

If you have had a toddler in your house sometime over the past few years, you likely already know all about the “Baby Shark” song. If you don’t know what I’m talking about, you are among the luckiest people on the planet. Except now I’m going to embed the video below to ensure you are aware of it.

I’ll give you a moment to shake off whatever ill feelings you have for me.

Now, the origins of the song are something of a minor mystery. We’ll get more into that in a second. For now, you can note that Pinkfong’s “Baby Shark” video was published on YouTube in 2016 and has millions of views. It was only this summer, however, that a musician named Johnny Only sued Pinkfong in South Korea for copyright infringement, claiming that the latter’s music was a ripoff of his own “Baby Shark” song that he published on YouTube in 2011.

I already know what you’re thinking: “But, Tim, those songs do sound very, very similar.” And when I tell you that Only is claiming in his lawsuit that the songs are specifically similar in length, tempo, rhythm, and style, your first thought is probably to agree with Only entirely. But maybe your second thought would be, “Wait, why are those the only similarities he’s claiming? Why not the lyrics, which are largely the same? Or the music entirely? Why is he so specific?”

The answer has to do with the mysterious origin of “Baby Shark.”

Even Only admits that “Baby Shark” predates him, however. Although no one is quite certain of the song’s origin, it’s believed to have been a campfire chant developed at U.S. summer camps for kids sometime last century. The song may have emerged in conjunction with the success of the “Jaws” franchise — though that’s just another theory.

In other words, this is a song without a known author — which effectively make the original version a public domain work.

Yup, this is a song that is generally considered to be in the public domain. At the very least it’s an “orphan work,” in that there’s no clear evidence of who the copyright holder is, and no one has stepped up to claim it in the past few years that’s it’s even charted. That means that, for Only’s suit to be successful, he’s going to have to demonstrate that the elements for which he’s claiming similarity were not part of the original song, were created entirely by him, and that they are protectable given that most people consider the rest of the work to be in the public domain. That’s not an impossible task, but it’s a fairly high bar to clear.

SmartStudy, the company behind the Pinkfong brand, is already pointing to the public domain song as its inspiration.

While Only insists that he should receive credit for what has become a worldwide phenomenon, SmartStudy strongly disagrees. They insist that their version of “Baby Shark” was based not on Only’s, but on the public domain version that Only based his work upon.

Given that this is all happening in South Korea, it’s difficult to predict exactly how the courts will decide on this. That said, this sure feels like two versions of a public domain work where the real reason for the lawsuit is that only one of them became massively popular.

Filed Under: , , , , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “'Baby Shark', Derived From A Public Domain Folk Song, Now The Subject Of A Copyright Dispute”

Subscribe: RSS Leave a comment
PaulT (profile) says:

Re: Re:

"some Koreans were inspired by some USAnian camp song"

Given that not only do many people from outside of the US travel there, but it is (was?) quite common for foreigners to be hired as summer camp counsellors – yes?

"most ppl have not heard of? "

Most people had never heard the folk songs that Down Under and The Lion Sleeps Tonight were based on either. Have a read about how that turned out.

Anonymous Coward says:

Why is the original song being counted as in the public domain, shouldn’t it just be treated as an Orphan Work and thus stuck in limbo? (like pretty much everything else we aren’t sure on who owns the copyright)

Especially as copyright is automatic currently, so for it to have any chance of being in the public domain you’d need to show it was initially made before copyright was automatic and never registered, or initially registered long enough back that it could have lapsed.

(Depending on what South Korean law says around orphan works)

bhull242 (profile) says:

Re: Re:

Well, it would have to be fixed in some sort of medium to be copyrighted, and it’s not clear whether the original “author” ever did so. Merely performing something in public isn’t enough to get copyright protection; either that performance must be recorded or the composition must be written down (at least in the U.S.) It’s entirely plausible that some kid just made up the song out of nowhere while camping and never wrote it down or recorded it, and in the meantime it was spread by others at the campsite.

Additionally, it’s not clear when the song was created in the first place. It’s entirely possible (though admittedly unlikely) that the song was written so long ago that it either expired or that it would have had to be registered to get copyright protection in the U.S.

This isn’t like with an orphaned book, which often has the copyright date included or has physical evidence of its age, and are inherently “fixed” into some medium at the time of creation. We have no way of knowing whether the song has copyright protection or not. As such, no one knows whether it’s in the public domain or is an orphaned work.

And for the record, one of the few things we know with reasonable certainty about the origins of this song is that it originated in the U.S., or maybe Canada. It is, after all, completely in English without any sort of Engrish involved. As such, whether it is copyrighted but orphaned (and unregistered), copyrightable but in the public domain, or uncopyrightable and thus inherently in the public domain is a matter of U.S. (or maybe Canadian) law, not South Korean law.

And based on what little I know about South Korean copyright law suggests that the parts of the song that predated both versions at issue here cannot be copyrighted by later artists that record their own versions of the original song.

bhull242 (profile) says:

Re: Re: Re: Re:

Oh, I know. I was just saying that there is absolutely no reason to suspect that any person born and raised in South Korea and still residing there wrote the song, let alone the plaintiff. As such, any copyright in the lyrics and basic melody of the song would not be under South Korean copyright law, which I don’t really understand enough to comment on.

Toom1275 (profile) says:

it’s believed to have been a campfire chant developed at U.S. summer camps for kids sometime last century.

I can confirm that I’d had that song sung around me at cub scout campfires at least a couple decades ago.

They insist that their version of “Baby Shark” was based not on Only’s, but on the public domain version that Only based his work upon.

Anyone reminded of the periodic table of HTML elements?

Laura Quilter (profile) says:

permission culture back-story

Interesting back story in this CBC article: https://www.cbc.ca/radio/q/thursday-january-24-2019-steffi-didomenicantonio-johnny-only-and-more-1.4989911/the-long-complicated-history-of-baby-shark-and-the-artist-fighting-for-credit-1.4989936

tl;dr : Johnny Only (the current plaintiff) originally thought it was public domain until PinkFong tried to claim copyright to stop a right-wing South Korean from using the song. That led Johnny Only to step up.

So, ultimately this is another consequence of permission culture: Asking for permission and assuming property, leads to acting like there is a property right ….

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...