Pink and Yellow, Pink and Yellow?

By Pierce Haar *

Wiz Khalifa Black and Gold coverA Pennsylvania man has sued Wiz Khalifa for copyright infringement related to the rapper’s hit song “Black and Yellow.”  Max Warren, also known as Maxamillion, filed a lawsuit in Philadelphia federal court seeking $2.3 million for copyright infringement.  Warren also named production duo Stargate, EMI Music Publishing, and Warner Music Group as defendants in the lawsuit.  In his complaint, Warren claimed that Wiz Khalifa stole elements from his song “Pink and Yellow,” which he claims was copyrighted in 2008.  Wiz Khalifa’s song “Black and Yellow” was obviously released later and was not copyrighted until 2011.  Max Warren is from Sharon, Pennsylvania, about an hour and a half drive from Pittsburgh, where Wiz Khalifa is from.  Mr. Warren claims that Wiz Khalifa heard his song “Pink and Yellow” back in 2008 and used parts of it to create “Black and Yellow.”

Members of Wiz Khalifa’s camp claim that no copyright infringement took place and that Max Warren is just looking to make a quick buck.  In fact, associates of Wiz Khalifa claim that he has never even heard of Max Warren or Maxamillion.  Max Warren’s attorney refutes this assertion, claiming that the two sides had previously discussed a settlement, though they were unable to broker a final deal.  The he said, she said dance will probably continue for months to come until the case is resolved.

Wiz Khalifa in Brooklyn in 2009Is this just a case of “some no-name rapper who wants to get paid?”  Or does Max Warren actually have a legitimate claim?  Have a listen for yourself(“Pink and Yellow” and “Black and Yellow”).  Besides the title similarities and the delivery of the respective titles during each song’s chorus, there is not much similarity between the two songs.  However, one could potentially see how listening to “Pink and Yellow” could inspire Wiz Khalifa to write “Black and Yellow.”  Even so, the ultimate question is whether or not Wiz Khalifa rose to the level of copyright infringement in creating “Black and Yellow.”

The standard for copyright infringement in these sorts of cases is “substantial similarity.”  Additionally, if the “infringer” independently created his or her work, then there is no copyright infringement.  Typically courts will determine issues of copyright infringement by comparing the two songs, or other works, and determining whether or not the “heart” of a copyrighted work has been improperly taken.  The “heart” could be a simple riff, a phrase in the chorus, or a memorable melody; the “heart” need not be substantial quantitatively.  Therefore, this case, if left unsettled, will probably revolve around whether or not Wiz Khalifa improperly used “Pink and Yellow,” its chorus in particular, to come up with his hit song “Black and Yellow.”  Hopefully the federal court in Philadelphia has a good ear or two because I sure cannot tell.

*  Pierce Haar is a second-year law student at Wake Forest University School of Law and a member of the Pro Bono Board, serving as the Special Trips Coordinator.  He holds a Bachelor of Arts in Peace, War, and Defense from the University of North Carolina at Chapel Hill.  Upon graduation in May 2013, Mr. Haar intends to practice either criminal law or civil litigation.