Copyright: Hip Hop, Producers & File Sharing

Ryan McConville, law student at the University of Wollongong and was completing a placement program at Arts Law in 2006.

Kanye West/ Ludacris and I.O.F 

US Hip Hop artists Kanye West and Ludacris were recently cleared of copyright infringement for their 2003 song “Stand Up”. A New York court ruled that they did not steal the chorus from the 2001 song “Straight Like That” by New Jersey group I.O.F.

I.O.F. sued West, Ludacris and Universal Music, claiming that their use of the words “like that” infringed I.O.F.’s composition. The court noted that in the absence of direct evidence, infringement might be proven by establishing that the defendant had access to the copyright protected work and that there is a substantial similarity in the two works.

Both songs use a call-and-response format, with a one syllable word preceding the words “like that.” On the I.O.F. song, the preceding word was “straight”, while the defendant’s preceding word was “just”. West and Ludacris successfully argued that the content shared by both songs was not original to I.O.F., and therefore not subject to copyright protection.

Although this decision was made under US copyright law it is interesting for Australian musicians. Under the Australian copyright law, copyright infringement involves using a substantial part of a protected work without permission. To prove infringement you must show that the defendant had access to the original work, and that the two works are similar ie. there has been some copying. The assessment of what is a substantial part of a work is qualitative rather than quantitative. A substantial part is the distinctive, important or essential part of the original music.

The White Stripes

Another US court recently ruled that Jim Diamond, former engineer of Detroit band The White Stripes, was not entitled to part-ownership in the copyright of the band’s first two albums.

Diamond, owner and operator of Ghetto Recordings studio, served as co-producer on the band’s debut album, The White Stripes and as mixer on the follow-up album De Stijl. Diamond claimed that his role in the recording process of the two albums entitled him to co-ownership in the copyright in both sound recordings and he sought back royalties on that basis.

The White Stripes successfully argued that Diamond’s contribution was limited to the positioning of microphones, reverberation effects and mixing. They likened Diamond’s role to that of a carpenter following a blue print and argued that as his technical contribution was so minimal, it was not one which gave him a copyright interest. He was also paid an hourly rate for his work on the recordings.

Again, be aware that this decision was made under US law and there are differences between US copyright law and Australian copyright law. However, it is an interesting assessment of how much input a person must have into the creation of a work to receive a copyright interest as a co-creator. The court also noted that the mere fact that Diamond was listed as an engineer, co-producer and mixer on the recordings did not automatically mean that he had no copyright interest.

Kazaa

There has been another development in the Australian file sharing case against Kazaa.

Sharman Networks, owners of the Kazaa software, reached a settlement with major record labels on 27 July 2006, agreeing to a one-off compensation payment of $AUD130.7 million. As part of the settlement, Sharman Networks will make Kazaa a legitimate online content provider, and will introduce filtering technology in an effort to block illegal content from their service.

The settlement also sees the end of a separate action against Kazaa in the United States.

In September 2005, the Federal Court of Australia found Sharman Networks guilty of authorising copyright infringement. Authorisation requires a party to sanction, approve or countenance the direct copyright infringement, and involves a consideration of the extent (if any) of a person’s power to prevent the infringement, the relationship between that person and the person who did the act, and whether reasonable steps were taken to prevent infringement occurring.

The court found that Sharman were aware that their software was being used to infringe copyright in sound recordings, and that they had the power to substantially reduce infringement by introducing filtering mechanisms.