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Mo’ Money, Mo’ Problems

On the anniversary of the late Notorious B.I.G.’s death, his estate was just released from civil liability of a copyright infringement lawsuit alleging damages in the amount of $24 million. Abiodun Oyewole, professionally and hereafter known as “Tunes by Dune”, and a member of the group The Lost Poets, brought a copyright infringement lawsuit against Biggie’s estate in March of 2016, for Biggie’s hit song “Party and Bullshit”. Also named in the lawsuit were Rita Ora, Busta Rhymes, Diddy Combs (if that was ever one of his many names – you know who I’m talking about), Roc Nation, among other publishers, producers and labels. Tunes by Dune asserted Biggie never obtained licensing rights for sampling The Lost Poet’s song “When the Revolution Comes” in “Party and Bullshit”, which was released in 1993. There’s no question that the song is sampled repeatedly throughout the hook of Party and Bullshit, and Tunes definitely owns a copyright for the underlying musical composition.

Tunes waited over 20 years to file the lawsuit. He didn’t file at the time of release because he wanted to be respectful of Biggie’s death and claims he didn’t expect any further acts of infringement, but when Rita Ora licensed the rights to Biggie’s track for her song “How We Do Party” in 2012, Tunes was beyond furious. He basically went on a suing spree. Busta Rhymes and Eminem were named in the suit for the 2014 song “Calm Down”, which also borrows from Biggie’s song. Diddy produced Rita’s song, so he was thrown in the mix too. In addition to compensatory damages, an injunction against further infringement, Tunes is requesting for the judge to determine that Tunes is the originator and owner of the term “party and bullshit”. Tunes is also upset about the message the infringing works portrays, as his original music was meant to discourage partying. He spoke of taking life seriously and moving towards success.

The lawsuit was dismissed by United States District Judge Alison J. Nathan, right in time for the 21st anniversary of Biggie’s death. Judge Nathan cited failure to state a claim, insufficient process, insufficient service of process and protections under the Fair Use Doctrine. Some parties were not served within the proper time period, even with extensions provided; some parties were not served at all. For those that were properly served, the court found the Fair Use Doctrine applied and there was no infringement.

The Fair Use Doctrine is a defense offered to defendants accused of copyright infringement and serves as a complete bar to liability. Section 107 of the Copyright Act provides the statutory framework for determining whether or not an infringing use is found to be fair under the law. In doing so, it lists four factors that should be examined when determining fair use and they are: (1) purpose and character of the use, including whether the use is of a commercial nature of for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The courts must balance all of the factors and make a decision as to a finding of fair use. The finding of the presence of one factor in favor of fair use does not in and of itself mean the infringing use will be fair.

The purpose and character of the use looks at how the defendant uses the copyrighted work and favors nonprofit and educational purposes over commercial ones. However, educational and nonprofit uses do not alone equate fair use. The nature of the copyrighter work examines the degree of creativity present in the copyrighted work; fair use is less likely to be found in novels, artwork, etc. and more likely to be found in a news story or technical article. The more the original work promotes the purpose behind copyright law, the less likely the use is to be fair under this prong. When analyzing the substantiality and amount of the portion used in relation to the work as a whole, the court examines both the quality and quantity of the copyrighted work used. Where a large portion is used, use is not likely fair; however, courts have found the use of an entire work to be considered fair. The benchmark for this prong looks at the heart of the copyrighted work. If the borrowed portion is the very essence of the work, infringement is more likely to be found. Lastly, when looking at the effect of the use upon the potential market for or value of the copyrighted work, courts consider whether the infringing use harms the current work. If the infringing work displaces the original work, fair use is generally not found.

Applicably, “Party and Bullshit” was created for commercial use, as it was one of Biggie’s hit records and borrowed by many artists who also sell records. But the court in this case found that “Party and Bullshit” was transformative, and since transformative uses are usually found to be fair uses, the first prong was decided in favor of fair use. The nature of the copyrighted work was such that promoted the purpose of copyright law, so this prong doesn’t favor fair use. Looking at the amount and substantiality, Biggie borrowed a 5 second clip of a 2:30 song, looped it and made it the hook for his song. While 5 seconds is not a large portion of the copyrighted work given its full length, one could argue the portion taken did go to the heart of both works. In the original, the borrowed part, is the only part aside from the title, that is repeated in the original song, so it certainly does stand out. My guess is the court found the borrowed portion did not represent the heart of the work. Lastly, Biggie’s work in no way harms the original work as it does not displace it in the marketplace, neither does it damage it in any other way. Balancing all of the factors together, the court found Biggie’s use was fair, so everyone who borrowed from him is protected by fair use too.


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