A Florida federal court ruled that a musical duo may not invoke the “fair use” defense to avoid copyright infringement claims in a case by rapper Rick Ross.
Hustlin’ and Shufflin’
Ross performed a 2006 hit song called “Hustlin,” which includes the phrase “every day I’m hustlin’.”
The duo LMFAO had their own hit with a song called “Party Rock Anthem” with a chorus that includes the phrase “everyday I’m shuffling.” The two singers, Skyler and Stefan Gordy, admitted that they were inspired by Ross’s song and called their own song a parody of it.
The judge found that “Anthem” did not qualify as a parody:
At best, Party Rock Anthem uses Hustlin’ in a humorous way, but in the absence of any directed criticism, comment, or ridicule, this (slight) element of humor is insufficient to support a parody defense.
Citing the leading Supreme Court case on parody as fair use, Campbell v. Acuff-Rose Music, Inc., the judge found the defendants’ parody arguments unpersuasive:
It appears that Party Rock Anthem merely uses Hustlin’ ‘to get attention’ or to ‘avoid the drudgery in working up something fresh,’ Defendants’ assertion of parody is an unconvincing post-hoc rationalization.
The case is William L. Roberts, II et al. v. Stefan Kendal Gordy et al.
As defined by the US Supreme Court,
The key factor in assessing whether a derivative work is a parody is deciding if it is transformative, if it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message….”
A determination of whether a use of a copyrighted work is allowed under the “fair use” doctrine tends to be highly fact-dependent. The Copyright Office offers a “Fair Use Index” – “to help both lawyers and non-lawyers better understand the types of uses courts have previously determined to be fair—or not fair.”
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Photo Attribution: “Concierto de LMFAO en Barcelona (2)” by Alterna2. Licensed under CC BY 2.0 via Wikimedia Commons.