Claims Against Beyoncé For Sampled Clips for “Formation” Survive, Despite Assertion of Fair Use

Estate of Barré et al. v. Carter et al., No. 2:17-cv-01057 (U.S. District Court for the Eastern District of Louisiana July 26, 2017)

A Louisiana federal judge refused to dismiss a copyright lawsuit against Beyoncé claiming she illegally sampled YouTube clips in her music video for “Formation.” The judge determined that Beyoncé’s use of the deceased YouTube star, Anthony Barré’s audio, would likely fail the four-factor fair use test. The Judge stated that Beyoncé’s use of Barré’s work was “highly commercial” and copied “the heart” of the original work, both weighing against a finding of fair use.  Barré’s estate had presented “sufficient facts at this stage of litigation to show that the four-factor fair use test could ultimately weigh against a finding of fair use.”

Copyright Ownership Claims Time-Barred For Songs Recently Sampled In Popular Songs

Wilson v. Dynatone Publishing, No. 16-cv-104 (S.D.N.Y. April 10, 2017).

For two songs from the 1970s that were recently sampled in popular songs, Plaintiffs sought a declaratory judgment judgment that they are the copyright owners of the sampled songs and that the defendants' copyrights are invalid, and Plaintiffs also sought an accounting.  The Court granted the defendants' motion to dismiss under Rule 12(b)(6).

The Court found that the copyright ownership claims were untimely and barred by the statute of limitations.  The claims accrued in the early 1970s.  The accounting claims, in addition to an absence of allegations of a fiduciary relationship, also were time-barred.

Blues Musician's Sampling Case Dismissed For Lack Of Jurisdiction In Illinois

Johnson v. Barrier et al., No. 15-3928 (N.D. Ill. Jan. 4, 2017).

The Court granted defendant's Rule 12(b)(2) motion to dismiss for lack of jurisdiction, without prejudice to refiling in another jurisdiction.  Plaintiff is a blues musician who alleges UMG and others intentionally misappropriated his song by sampling it in another group of songs (the "Juice Products").  After granting plaintiff limited jurisdictional discovery, the federal Court found that it did not have specific or general jurisdiction over the defendants under Illinois law.  The Court observed that " UMG’s wholesale shipments and sales of Juice Products within Illinois constituted only 1% of its total wholesale figures, and—as UMG’s corporate designee testified—none of the marketing associated with the Juice Products was specific to or otherwise targeted Illinois."  Having dismissed on jurisdictional grounds, the Court did not decide the defendants' motion to dismiss for failure to state a claim.

Court Reconsiders Attorney's Fees In Madonna Horn-riff Case And Finds No Fees Warranted

VMG Salsoul v. Ciccone et al., No. 12-5967 (C.D. Cal. Sep. 23, 2016).

On remand from the 9th Circuit, and in light of the recent Supreme Court decision in Kirstaeng holding that objective unreasonableness is not the controlling factor in awarding attorney's fees, the district court in the Madonna "Vogue" horn-riff case held that Madonna was not entitled to attorney's fees under the Copyright Act even though she successfully defeated the infringement claim.  Finding it an "extremely close case," the Court found that under the totality of the circumstances an award of fees would not best serve the purposes of the Copyright Act.  Although certain factors favored the prevailing defendants, the Court found that the plaintiff's claims were not frivolous or objectively unreasonable.

Madonna's De Minimis Use Of Horn Segment In 'Vogue' Not Copyright Infringement

VMG Salsoul, LLC v. Madonna Louise Ciccone, No. 13-57104/14-55837 (9th Cir. June 2, 2016) [decision].

The 9th Circuit Court of appeals affirmed summary judgment in favor of Madonna, holding that any copying of the plaintiff's horn segment in the Madonna song "Vogue" was de minimis and not an infringement of either plaintiff's composition or sound recording.  However, the appellate court reversed the award of attorney's fees to Madonna, holding that plaintiff's claim, which was premised on a legal theory adopted by (only) the 6th Circuit that use of an identical copy of a portion of a sound recording is an infringement, was objectively reasonable.

The 9th Circuit had previously held that the de minimis exception applies to claims of infringement of a copyright composition, but it was an open question in the Circuit whether the exception applied to claims of infringement of a copyrighted sound recording.  The Court concluded that, as to both the composition and sound recording, an average audience would not recognize the appropriation.  And then, the Court refused to adopt the bright-line rule adopted by the 6th Circuit that for copyright sound recordings, any unauthorized copying - no matter how trivial - constitutes infringement.  (Bridegeport Music v. Dimension Films, 410 F.3d 792 (6th Cir. 2005)).  The 9th Circuit recognized that it was taking the unusual step of creating a circuit split, but found that it had an independent duty to determine congressional intent.  Accordingly, it held that the de minimis exception applied to sound recordings.

Sampling Case Against B.I.G. Dismissed

Hutson v. Notorious B.I.G., LLC et al., No. 14-cv-2307-RJS (SDNY Dec. 22, 2015) [Doc. 51].

On a Rule 12(b)(6) motion, the Court dismissed plaintiff Lee Hutson's copyright infringement claims against the Notorious B.I.G.'s successor, label, publisher, record company and distributor, which alleged unauthorized sampling of Plaintiff's 1973 song (composition and sound recording) "Can't Say Enough About Mom" in the Biggie song "The What" appearing on the 1994 album "Ready To Die."  Plaintiff alleged that he first discovered the unauthorized sample in 2012, and brought suit in 2014.  In his amended complaint, plaintiff alleged infringement of the composition, of the sound recording outside the USA, and the digital performance right of the sound recording.

The Court dismissed each claim.  After noting the standard on a Rule 12(b)(6) motion, and discussing which documents outside of the pleadings it would consider (e.g., agreements, the sound recording, copyright registrations, certificates of incorporation), the Court then turned to each cause of action.

First, the Court found that Plaintiff lacked standing.  Although Plaintiff alleged that he owned 50% of the copyright in the composition, the Court found that allegation implausible for the time of the infringement (1994-the present) because the agreements submitted did not establish that he had a chain of title, and further, the allegation that plaintiff was "doing business as" a certain entity was insufficient given corporate formalities.  [The Court did note in dicta, fn. 4, that the statute of limitations defense likely failed.]  Similarly the Court found that Plaintiff failed to plead ownership of the sound recording because of a a prior lawsuit in which the settlement included an assignment to the record label as well as a release.

Second, the Court found that it lacked jurisdiction over infringement occurring abroad.

Accordingly, the Court dismissed the claims.  The Court even dismissed claims against a non-moving defendant.

Lastly, the Court denied Plaintiff's application for leave to amend, as futile.

Plaintiffs In Sampling Case Fail To Sufficiently Plead Their Standing



Kelley v. The Universal Music Group, No. 14-cv-2968 (S.D.N.Y. filed 10/19/15).

In a case alleging that a song by the artist "Fabulous" infringed plaintiffs' 1974 song by including an unauthorized sample, the Court dismissed the pro se plaintiffs' copyright claim without prejudice to amend based on their lack of standing. The Court found that a copyright registration listing the plaintiffs as authors but not claimants rebutted their claim; but, that plaintiffs could replead to allege that they have standing as "beneficial owners" (i.e. a right to collect royalties), which was not sufficiently pleaded. The other state-law claims for violation of "poetic license " and "fraudulent deceit" were held to be preempted by the copyright act, and the mental anguish claim was not a remedy authorized by the statute.

Jay-Z Must Produce Concert Revenue In 'Big Pimpin' Infringement Suit

Fahmy v. Jay-Z, No. 2:07-cv-05715-CAS, 2015 BL 8688 (C.D. Cal. Jan. 12, 2015).

Jay Z's motion for review of a Magistrate Judge's ruling directing him to produce documents concerning his concert revenues was denied.  This action concerns Jay Z's alleged unauthorized sampling of "Khosara, Khosara" from the 1960 Egyptian film Fata Ahlami in his 2000 hit song "Big Pimpin'."  A Magistrate Judge had ordered Jay-Z  to produce the amount of revenue he earned from concerts where he performed "Big Pimpin' in order to allow the plaintiff to calculate his damages.  Jay-Z moved for review of the magistrate's order under Federal Rule of Civil Procedure 72(a).  The District Court denied the motion.  The magistrate's order was not "clearly erroneous or contrary to law."   The discovery of concert revenue "appears reasonably calculated to lead to the discovery of admissible evidence" concerning the existence and amount of damages. Fed. R. Civ. P. 26(b)(1).  Nor was there evidence that the burden of production was undue.

Sampling Case Against Jay-Z Dismissed Because No Substantial Similarity

Tufamerica Inc. v. WB Music Corp. et al., No. 1:13-cv-07874-LAK (SDNY filed 12/08/14) [Doc. 19].

The Court dismissed a claim against Jay-Z that was based on the sampling and use of the word “oh” in an audio recording and music video entitled Run This Town.  Plaintiff’s works were a composition and a pre-1972 sound recording thereof in each of which the word “oh” appears once.  The Court held that, even assuming that defendants copied, or “sampled,” a portion of plaintiff’s works, plaintiff had not stated a plausible claim because there was no substantial similarity.

According to the Court, "Run This Town bears very little and perhaps no similarity at all to [Plaintiff's song]. The melody and lyrics are entirely different. The lyrics do not contain the word 'oh'. And while the Court assumes, as plaintiff contends, that the alleged 'sample' of that word appears in the accused recording and video 42 separate times, it must be said also that it does so, if at all, only in the background and in such a way as to be audible and aurally intelligible only to the most attentive and capable listener."

The Court observed, in dicta, that plaintiff's usage of the word "oh" in the composition likely was not subject to copyright protection, though it may have been in the sound recording.  However, the Court found other grounds to dismiss and therefore assumed "oh" was protectable.  Specifically, the Court found there was no substantial similarity.

First, the "oh" was not quantitatively significant in either the composition or sound recording thereof. Second, the court found that the qualitative significance of "oh" in plaintiff's work was insufficient.  "Oh" was not the heart of the composition, having appeared only once and being a common word.  As to the recording, "oh" only appeared at the beginning, and was a replaceable term; indeed, "oh" could have been removed completely without significantly changing the essence of the recording.  That Jay-Z used the "oh" more than 40 times did not change the analysis, because what is relevant is the qualitative and quantitative significance of the copied portion in relation to the plaintiff’s work as a whole (not the significance to the defendant's work).

Wyclef Escapes Infringement Claim Because "Actual Sounds" Not Copied

Pryor v. Jean, No. CV 13-02867, 2014 BL 283332 (C.D. Cal. Oct. 08, 2014) [Doc. 36].


Plaintiff, who claimed that his 1970's song "Bumpin' Bus Stop" was infringed by the defendants use of a sample in the Wyclef Jean song "Step Up" recorded in 2006, had his copyright infringement case dismissed.  The issue was that Plaintiff's song had appeared on two albums.  The song first appeared on a recording referred to as the "Gold Future" record.  Later, the Gold Future record was remastered, shortened in duration, and Plaintiff's band name was changed.  The latter record was referred to as the "Private Stock" record.  Years later, Defendants licensed the song from the Private Stock record.

The existence of two separate sound recordings (the Gold Future record and the Private Stock remaster) was important, as the substantive allegations at issue referred only to copyright to the Gold Future record, and not to the "Bumpin' Bus Stop" musical composition featured in both the Gold Future record and the Private Stock record.  The Court found: "Under 17 U.S.C. § 114(b), Plaintiffs have the exclusive right to duplicate, rearrange, or remix the 'actual sounds' of the Gold Future record. Defendants did not do anything with those 'actual sounds.'  Rather, Defendants used licensed 'actual sounds' from the Private Stock record.  Because the TAC's First and Second claims for relief are premised solely upon infringement of the Gold Future sound recording copyright, those claims are DISMISSED, with prejudice."

Suit Against Kanye West Dismissed On "De Minimis" Grounds

Steward v. West, No. CV 13-02449 (C.D. Cal. Aug. 14, 2014).

In this copyright infringement action against Kanye West et al concerning a sample, the Court granted defendants' Rule 12(c) motion for judgment on the pleadings.  On the motion, the Court considered the sound recordings and held that, while plaintiff's sound recordings were sufficiently original to be protectable, defendants' copying was de minimis.  "The result of these distortions and the short length of the samples is that the average audience would not recognize plaintiffs’ Song in any of Defendants’ songs without actively searching for it. In the Ninth Circuit, digital sampling is de minimis when 'the average audience would not recognize the appropriation.'"  Accordingly, the copyright infringement (and dependent contributory liability claims) were dismissed.

Publisher Not Liable For Contributory Liability In Sampling Case Because Lacked Knowledge

Prior v. Warner/Chappel, No. 13-4344 (C.D. Cal. Feb. 20, 2014).

The court dismissed plaintiff's contributory copyright infringement claim against defendant music publisher because the complaint failed to allege the defendant "knew or had reason to know that [the song] included an unauthorized, infringing sample...".  Moreover, the complaint failed to plausibly allege how the defendant knew that the directly infringing defendants would infringe as a result of the publisher's licensing of the song.

Madonna's "Vogue" Does Not Infringe Horn-Hit

VMG Salsoul, LLC v. Madonna Louise Ciccone, et al., No. 12-cv-05967 (C.D. Cal. filed 11/18/2013) [Doc. 116].

Plaintiff alleges copyright infringement for the appropriation of a single horn stab (“Horn Hit”) from Plaintiff’s work, Love Break. The Horn Hit is a single chord that is played eleven times in Defendants’ work, Vogue. The Court found that neither the chord nor the Horn Hit sound sufficiently original to merit copyright protection. Even if the alleged appropriation was subject to copyright protection, the Court found that any copying was de minimis.  Accordingly, defendants were granted summary judgment.

The Court recognized that while a valid certificate of registration with the copyright office entitles Plaintiff to
a presumption of originality, Defendants may overcome this presumption by demonstrating that the Horn Hit is not original.  The Court then concluded that, as a matter of law, the Horn Hit is not sufficiently original to merit copyright protection.  "The Horn Hit is not a component of the 'hook' in Plaintiff’s Love Break nor is it accompanied by a lyric. As a result, the Court finds that this single chord is not sufficiently original to merit copyright protection".

The Court further found that even if the alleged appropriation was subject to copyright protection, Defendants’ use was de minimis.  "Having listened to the sound recordings of Chicago Bus Stop, Love Break, and Vogue, the Court finds that no reasonable audience would find the sampled portions qualitatively or quantitatively significant in relation to the infringing work, nor would they recognize the appropriation. The Court finds that any sampling of the Horn Hit was de minimis or trivial."  Lastly, there was also evidence of independent creation.

Beastie Boys Avoid Several Copyright Claims In Sampling Case

TufAmerica, Inc. v. Diamond et al., No. 12-cv-3529-AJN (S.D.N.Y. filed Sep. 10, 2013).

Plaintiff brought a copyright infringement action against the Beastie Boys alleging unlawful sampling of 6 pieces of plaintiff's music in five Beastie Boys songs that appear on two Beastie Boys albums (Paul's Boutique and Licensed to Ill).  Defendants moved to dismiss for failure to state a claim under Rule 12(b)(6).

The Court agreed with plaintiff that the standard for determining substantial similarity was "fragmented literal similarity", rather than "ordinary observer" standard.  Under the "fragmented literal similarity" standard, the question was whether the copying went to trivial or substantive elements.  Thus, the "real question" for the Court was whether Plaintiff had alleged that each sample was "quantitatively and qualitatively important to the original work such that the fragmented similarity becomes sufficiently substantial for the use to become an infringement."  Under the quantitative analysis, the concept of de minimis copying is relevant.  Also, the analysis is of the original song -- not of the use in the allegedly infringing song; therefore, the Court was not persuaded by Plaintiff's allegation in its original complaint that the samples were concealed to a casual listener of the Beastie Boys' songs.  Thus, the Court then went on a song-by-song analysis, which included a discussion of whether the sampled portion was even copyrightable material, and dismissed four of the claims based on 4 of the samples.  Lastly, under the statute of limitations, the Court also limited the surviving claims to infringements occurring after May 2009 (3 years before the suit was filed).

Sampling in Germany

Germany's highest civil court today held that sampling music does not in principle violate copyright.

The decision overturned a lower court ruling that reusing even the shortest bit of a song infringed on copyright.

Today's order means that sampling of a song melody is prohibited, but a sample that is part of a completely new musical work bearing no resemblance to the original is not infringement.

[Kraftwerk case]

[Rolling Stone Article.]

Sampling - Don't Play With Fire

Copyright infringement arising from defendants' unauthorized use of plaintiff's copyrighted song "Play with Fire," which is allegedly unlawfully contained in Lil Wayne's album "Tha Carter III." Of note, "Play with Fire" is a song originally created by The Rolling Stones.

ABKCO Music Inc. v. Dwayne Michael Carter, Jr. pka Lil Wayne; Nicholas Mark Warwar pka StreetRunner; Jason Desrouleux; Cash Money Records Inc.; Universal Motown Republic Group; Universal Music Group Recordings Inc.; Young Money Publishing Inc.; Warner-Tamerlane Publishing Corp.; Warner/Chappell Music Inc.; EMI Music Publishing (filed 7/24/2008, No. CV-6573)

Sampling Suit - West, Common, & Redman

Rolling Stone reports:
Kanye West, Common, Method Man and Redman were all sued for sampling late jazz artist Joe Farrell’s 1974 song “Upon This Rock” without permission.

The case was filed in SDNY. Complaint below:

Read this doc on Scribd: Firrantello v West et al COMPLAINT

[Firrantello v. West et al., No. 08-cv-4785 (S.D.N.Y. filed 5/22/08)]

Oh, Nelly!

Juan Antonio Castro Rios p/k/a/ Tony Tun Tun v. Coalition Music, LLC et. al, No. 1:08-cv-20922-AJ (S.D.Fla filed Apr. 4, 2008).

Allegations:

Plaintiff wrote a song ("Hagamos el Amor"), brought the song to Nelly, and the two worked together to edit the musical arrangement of the original composition. English lyrics were written to a portion of the composition, and plaintiff recorded and produced the vocals.

Nelly retained copies of the recordings, and the composition appeared on "The Perfect Melody", performed by the artist Zion and produced by Nelly. Neither Zion or Nelly (or any other party) obtained licenses or consent for use of the composition.

The liner notes to "The Perfect Melody" falsely state that Zion is the sole songwriter of the composition, though it is noted that plaintiff is featured in the performance.

Therefore, plaintiff seeks declaratory relief as to the various parties' ownership percentage in the composition. Also, plaintiff alleges fraud by Nelly, unjust enrichment against all defendants, and seeks an accounting.

Interestingly, plaintiff's last count is for copyright infringement -- defendant's composition "is an unauthorized and illegal derivative work of the original composition".

[Request copy of the complaint]

Kanye & Jay-Z "What? What?"


Kanye West and Jay-Z are among the co-defendants in a case filed in the District of Maryland (which Plaintiff erroneously describes in the caption as being in the Sixth Circuit).
Plaintiff Dayna D. Staggs -- who is likely appearing pro se -- has asserted...request your own copy of the complaint here. The complaint is an interesting, if not sometime confusing, read. But don't get the wrong idea; OTCS believes plaintiff's complaint would withstand a 12(b)(6) motion to dismiss for failure to state a claim!

From what we gather from the single spaced, unnumbered, 6 page complaint (which includes a single signature line for the multiple defendants), Plaintiff seeks injunctive relief, damages, and legal fees arising for copyright infringement, unfair competition, and "unauthorized use of Plaintiff [sic] likeness and Mtv sound recording, composition and internationally musical content entitled 'Volume of Good Life' herein described on phonorecord white label by the United States Library of Congress." Though Plaintiff's grammar and syntax could be improved, the allegations have a good chance of satisfying FRCP's liberal pleading standards (Rule 8). What could be a more "short and plain statement" than one completely lacking legalese?
Plaintiff alleges that he is the songwriter for the composition "Hollar at Me" (1985), released on EMI by R&B artists ICEE HOTT. But, this is all of minor relevance because the alleged infringement relates to Kanye West's release of "Good Life" on Roc-a-fella records. Plaintiff alleges to be the author of a composition and sound recording entitled "Volume of Good Life", which Kanye West sampled without authorization (and which his label released).
Additionally, "the vulgar, sexual and racially-charged nature of the Infringing master work is directly counter to [Plaintiff's] long established public persona, utterly inconsistent with the musician, artist clean image. And harms the reputation of the Dayna D Staggs Copyrighted Rock/Pop master work clean titled 'Volume of Good Life." [sic].
Despite the numerous grammatical errors in his complaint, Plaintiff appears to have some idea of what he is doing. For example, he sent cease and desist letters which "did not receive a favorable response". He alleges the labels have commercially profited from the infringement. He alleges willful infringement -- "Defendants are undoubtedly familiar with [Plaintiff], his songwriter likeness, and also are friends of the Plaintiffs myspace page located at www.myspace.com/dmystro." He makes claims for legal fees, and claims that he has no adequate remedy at law (though he later requests punitive damages and states "the Actual harm Plaintiff suffered is reflected in the amount of licensing fee that Plaintiffs lost because of the infringement").
So in sum, Plaintiff has asserted an unauthorized sampling claim against Kanye West and his label and publishers.
[Staggs v. West et al., No. 08-cv-0728-PJM (D.Md. filed Mar. 20, 2008).]

White Stripes Sampling Suit

The White Stripes are being sued in Candada by a form Quebec-radio DJ for alleged unauthorized sampling of (10 seconds of) her radio program. In addition to $70,000 in damages, the plaintiff is seeking the removal of all copies of the alleged infringing album, "De Stijl", from store-shelves.

If this was a case brought under the US Copyright Act, such remedy would be sought under 17 U.S.C. 503: "At any time while an action under this title is pending, the court may order the impounding, on such terms as it may deem reasonable, of all copies or phonorecords claimed to have been made...in violation of the copyright owner's exclusive rights..." Would a US court deem it REASONABLE to impound all copies of the White Stripes album, given the album is 37+ minutes in length, and the alleged unauthorized sampling is a mere 10 seconds (of a nearly 2 minute song)?