Leech Tishman

 

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.

Not “Fresh”

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.

Takeaway

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.”

About Us

Leech Tishman’s Intellectual Property Group is based in Pasadena, California with a team of highly-regarded legal professionals with prosecution and litigation expertise in the fields of patent, trademark, copyright, and trade secrets.

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Photo Attribution: “Concierto de LMFAO en Barcelona (2)” by Alterna2. Licensed under CC BY 2.0 via Wikimedia Commons.

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