Showing posts with label Kanye West. Show all posts
Showing posts with label Kanye West. Show all posts

Friday, October 4, 2013

Jay-Z, Kanye West, Run D.M.C. and Others Sued for Past Sampling

Unauthorized "sampling" of catchy melodies used in modern music is heating up as a recurring legal issue.  

Several high-profile copyright cases have been filed in recent months against major performers, accusing them of taking a portion, or "sample," of one sound recording and reusing it as an instrument or a sound recording in a different song or piece, without authorization.

As discussed in detail on Wikipedia, sampling was originally developed by experimental musicians in the 1960's.  However, hip hop music was the first popular music genre based around the art of sampling - being born from 1970's DJs who experimented with manipulating vinyl on two turntables.

Sampling is now most often done today with a computer program. However, vinyl emulation software may also be used, and turntablists continue to sample using traditional methods.  The inclusion of sampling tools in modern digital production methods increasingly introduced sampling into many genres of popular music, as well as genres predating the invention of sampling, such as classical music, jazz and various forms of traditional music.

Several recent cases have been filed against established performers, premised on allegations that such activity constitutes a clear form of copyright infringement -- even when the alleged infringement occurred decades ago, and was only recently discovered.

It is likely that sophisticated software tools have allowed performers to go back and analyze musical catalogs to locate potential infringement that may have been harder to audibly detect with the "naked ear."

Jay-Z, Kanye West, Mark Wahlberg, Run D.M.C. and many others face a new copyright infringement lawsuit brought by Twilight Records and Syl-Zel Music which claim that the 1967 song "Different Strokes" that was performed and recorded by Syl Johnson was sampled without permission in a variety of derivative works in the 1990's.

According to the suit which was filed in federal district court in Chicago, Usher infringed upon the Different Strokes copyright with his 1993 song "Call Me a Mack," while Public Enemy allegedly made use of a copyrighted riff without authorization on multiple hit songs including Fight the Power.

Both Mark and Donnie Wahlberg are accused of sampling the same tunes on "The Last Song on Side B."  Run D.M.C. faces similar allegations for its songs "Naughty" and "Beats to the Rhyme."  All of the accused songs were released in the 1990's.

The Different Strokes melody has previously been the subject of similar litigation against more recent music performed by Jay-Z and Kanye West.  A lawsuit filed in 2011 had claimed that those performers improperly sampled the tune on their "Watch the Throne" album.  That suit was settled confidentially.

Putting aside the merits of the factual allegations, the latest cases may face an interesting legal problem.

The U.S. Copyright Act imposes a three year statute of limitations on civil copyright infringement claims from when the claim "accrued," barring a copyright owner from seeking damages for infringement that occurred in the past.

However, where alleged infringement is ongoing, federal courts have split on whether any bar applies, and whether the more flexible and equitable "estoppel by laches" defense should apply.

Furthermore, there is some dispute as to when the statute of limitations begins to run, given modern technology.  Usher's song "Call Me a Mack" was released in 1993, two decades ago.  However, the use of iTunes and cell tone ringtones have created a robust new marketplace for such a song.

Other courts have held that the doctrine does not apply in this context, because there is nothing in the text or legislative history of the U.S. Copyright Act that suggests that Congress ever intended for an equitable defense to apply.  It is unclear if the Supreme Court will resolve this split among the federal appeal courts on how to measure a purported delay.

Injunctions against further use of the song by these third parties could present a concern, but equally worrisome to these defendants is the fact that the copyright owner has sought an accounting for all past profits, as well as reimbursement of its' attorneys' fees.

Tuesday, August 28, 2012

Kanye West Even Stronger After Winning Appeal

Kanye West Performing / Matthew Field
Kanye West has won the appeal of a dismissal of a copyright case filed against him by producer Vincent Peters.

In Vince Peters, p/k/a “Vince P.” v. Kanye West, et al., recording artist Kanye West and music companies Roc-A-Fella Records, LLC and UMG Recordings, Inc. had been accused of copyright infringement involving West’s Grammy Award-winning song Stronger.

Peters alleged that they had infringed his copyright by copying portions of Peters' song Stronger, including the well known maxim “that which does not kill me makes me stronger.” 

Defense counsel moved to dismiss the case on the grounds that there were no protectable similarities between the two songs at issue.  

The District Court of the Northern District of Illinois agreed and granted West's motion to dismiss on March 9, 2011. 

The Court also rejected Vince P.’s argument that the original combination of the five words and phrases was protectable.

Lastly, the Court reviewed the two sets of lyrics and determined that lyrics were not substantially similar, and that, “just as a photographer can not claim copyright in the use of a particular aperture and exposure setting,” a common rhyme scheme does not qualify as original expression.  

On August 20, 2012, in a decision written by Judge Wood, the U.S. Court of Appeals for the Seventh Circuit affirmed the District Court's decision, finding that none of the allegedly similar words and phrases contained in the songs were protectable under copyright law.  

The District Court had noted that the phrase was a hackneyed one, tracing it back to 19th century German philosopher, Friedrich Nietzsche:

"Although the fact that both songs quote from a 19th century German philosopher might, at first blush, seem to be an unusual coincidence, West correctly notes that the aphorism has been repeatedly invoked in song lyrics over the past century."