December 18, 2008 5:00 PM
Rapper Lil Wayne Wrapped Up in Landmark Copyright Suit
Posted by Brian Baxter
We here at The Am Law Daily have an unabashed affinity for hip hop--we attended the same New York public high school that spawned several members of the Wu-Tang Clan--but two rap-related posts in one week seemed a bit much.
Until, that is, we started delving into the copyright suit between New Orleans-born rapper Lil Wayne (aka Dwayne Carter) and an obscure South African singer named Karma-Ann Swanepoel. The case hit the headlines recently because Lil Wayne's lawyers at Jones, Walker, Waechter, Poitevent, Carrère & Denègre asked U.S. district court judge Martin Feldman in New Orleans for more time to turn over documents requested by plaintiffs lawyers.
The case was filed in May by Swanepoel's music label, Los Angeles-based Urband & Lazar Music Publishing. According to the eight-page complaint, Urband & Lazar claims that Lil Wayne and his music label, New Orleans-based Cash Money Records (a division of Universal Music Group), didn't have permission to sample Swanepoel's song "Once" on the rapper's Internet hit "I Feel Like Dying."
On the song, a lament about drug and alcohol use with a thumping bass line, Lil Wayne raps over vocals supplied by Swanepoel. This is where things get sticky. While "I Feel Like Dying" is one of Lil Wayne's most downloaded songs--LA Weekly reports it was played more times on the rapper's MySpace page than his 2008 hit single "Got Money"--you won't find it on any album released by his record label.
That's because "I Feel Like Dying" lies in the somewhat amorphous IP territory within the hip hop genre of mixtapes, freestyles, and DJs--the lifeblood of any rapper that wants to keep his "street cred."
LA Weekly ran an interesting story in September that detailed the music industry background to the Lil Wayne copyright case, noting that "I Feel Like Dying" was leaked to the public along with several other tracks that didn't make it onto the rapper's critically acclaimed 2008 album Tha Carter III. The blogosphere and music magazines picked up on the song, fanning the flame of its popularity. But Lil Wayne claims he hasn't made a dime off it.
"This is the first case where a song that hasn't been sold is the subject in a copyright-law case--and that's very rare," said University of Southern California Gould School of Law technology and IP professor Jack Lerner to LA Weekly. "The big question is, how far can copyright holders go to stifle or silence someone who sampled a song and isn't selling it, even if they are using it in performances?"
But Urband & Lazar, which is being represented by Michael Allweiss of New Orleans's Lowe, Stein, Hoffman, Allweiss & Hauver, claims that Cash Money and Lil Wayne did intend to profit from "Dying." (Allweiss did not return a request for comment by the time of this post.)
In the complaint, plaintiffs allege that after negotiations broke down between Cash Money and Urband & Lazar for a license to use Swanepoel's "Once" on Tha Carter III, it was scrapped from the album.
Lawyers for Urband & Lazar claim that Lil Wayne willfully infringed on their client's copyright by allowing "Dying" to be released and that the rapper has been unjustly enriched through ticket sales for his concerts--where he performs the song--and positive public feedback from an implied association with Swanepoel that's bolstered sales of Tha Carter III.
This isn't Lil Wayne's first brush with the long arm of the IP bar. The rapper was sued in July in U.S. district court in Manhattan by Abkco Music--the New York-based company that owns the rights to the Rolling Stones' "Play With Fire"--for allegedly infringing on its copyright with his "Playing With Fire" song from Tha Carter III. Abkco accuses Lil Wayne and Cash Money, who are being represented by Jenner & Block's Andrew Bart, of using an altered version of the Stones' song.
The suit came only seven months after the rapper and his fellow Cash Money Millionaires--Birdman and the Big Tymers--were slapped with a copyright suit by several music publishers accusing them of sampling other artists' songs without paying licensing fees.
For their part, Lil Wayne's lawyers at Jones Walker aren't talking. Reached by phone in his office, Jones Walker partner Coleman Ridley, Jr., says he can't discuss pending litigation. Ridley did say that he had a "preexisting relationship with some of the principals for Cash Money," which helped him get the Lil Wayne case.
But the most fascinating aspect of the Lil Wayne-Swanepoel dispute, USC's Lerner told LA Weekly, is its implications for "fair use" in an age when strong copyright laws clash with new music media platforms like iPod mixes, podcasts, and MP3 blogs.
"The mixtape tradition has and will carry on as long as the rights holders permit it, no matter how valuable it is to the culture or how much users, artists, and the public rely on that tradition," Lerner told the alternative weekly.
Whether or not Lil Wayne can weather the subsequent legal storm remains to be seen, although we certainly wouldn't mind seeing an IP-related rap about the whole situation.
"Copyright, s*it ain't right, ..." Okay, we'll stop.Make a comment