Gaga’s Betrayal: The Copyright Fight over “Judas”
It seems fitting that Lady Gaga’s most recent legal battle is surrounding controversy over “Judas,” a song referencing the disgraced disciple famous for betraying Jesus for thirty pieces of silver. In 2011, a relatively unknown Chicago musician, Rebecca Francescatti, filed suit against the Mother Monster for allegedly stealing part of Francescatti’s copyrighted song “Juda.” The suit is for copyright infringement; Gaga is being accused of “sampling” Francescatti’s song which would violate two copyright protections. These protections are codified in 17 U.S.C. § 102, the first for the song itself and the second for the sound recording. If Gaga’s “Judas” is based off of Francescatti’s song she needs a license to be compliant with 17 U.S.C. § 115.
In order to be successful on a copyright infringement claim the plaintiff must demonstrate ownership of the work, proof the defendant had access to the song, and substantial similarity between the two works. The facts of this case are an interesting fit. Francescatti registered “Juda” in 1999 and recorded it in 2005. Both performers used recording engineer Brian Gaynor on their albums, however, Gaynor did not work with Gaga on “Judas.” Gaynor has also been named a defendant in the suit.
The definition of “substantial similarity” is slightly different between the circuits. In the 7th Circuit, where this case is taking place, the definition recently changed. Previously, the court used the “ordinary observer” test where the judges would attempt to determine, after listening to both songs, if an ordinary person off the street would consider them similar. The standard changed in 2012 with the Kanye West case, Peters v. West, where the Court of Appeals rejected the notion that opportunity was enough. The current standard requires the plaintiff to show that the defendant not only had access to their song but also provide evidence of similarity.
How the 7th Circuit will assess Gaga’s possible copyright infringement under the new standard articulated in Peters remains to be seen. For fun, be the ordinary observer and listen for yourself!
Lady Gaga- “Judas”
Rebecca Francescatti- “Juda”
