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99 Problems and Syl’s Just One: Rap Royalties, Jay-Z and Kanye West, Sued for Copyright Infringement on the ‘Throne’

Published onOct 24, 2011
99 Problems and Syl’s Just One: Rap Royalties, Jay-Z and Kanye West, Sued for Copyright Infringement on the ‘Throne’

Kings in Court Series: Part I

The Kings in Court series was created to highlight individuals, who are deemed to be royalty in their own right, that have found themselves in court for some sort of intellectual property violation.

On October 14, 2011, blues and soul musician Syl Johnson filed suit against the self-proclaimed kings of rap, Jay-Z and Kanye West, alleging copyright infringement. According to the complaint, which was filed in an Illinois federal court, the rap royalties illegally sampled a portion of Syl Johnson’s, “Different Strokes,” on their most recent album, Watch the Throne,in the song, “The Joy.”  The complaint further makes the dual points that Mr. Johnson never gave any permission for the use of his song and that Mr. Johnson has not been given any form of recognition or payment for the use of his song.

The official filing of Mr. Johnson’s suit should have come as no surprise to either rap king.  In or around August 2011, the archival record label, Numero Uno Group, threatened to file a suit on behalf of Mr. Johnson for the illegal sampling of “The Joy” in its blog. Originally, Kanye West was going to use that sample in a song on his solo album, “My Beautiful Dark Twisted Fantasy,” but he was unable to get a clearance in enough time to make the album.  Some sources have indicated that an agreement had actually been reached for the sample’s use, but the negotiations were ultimately unsuccessful because the song was not being sold.  Even so, “The Joy” resurfaced as a bonus song on the deluxe edition of Watch the Throne with no mention of Syl Johnson in the credits.  According the complaint, “. . . Despite having never received permission to use an excerpt from ‘Different Strokes,’ Defendants nonetheless released ‘The Joy’ shortly thereafter on Watch the Throne.”  Kanye’s inability to secure a license for the use of Mr. Johnson’s sample on one album, and then subsequent illegal use of the sample on another album, could possibly constitute a knowing and willful misappropriation.

Copyright infringement occurs when “a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.”  However, under the Federal Copyright Act, sound recordings made before February 15, 1972 are not entitled to copyright protection.  Mr. Johnson first became acquainted with this pre-1972 caveat when his $29 million dollar lawsuit against Cypress Hill for illegally sampling one of his songs released in 1969 was dismissed.  The judge in that case held that the song, “Is It Because I’m Black,” did not fall within the purview of the Federal Copyright Act because the song was released nearly three years prior to the Act’s passage.

Currently at issue is the illegal use of Mr. Johnson’s 1967 song, “Different Strokes,” on the newly released Watch the Throne album.  Like the song, “Is it Because I’m Black,” “Different Strokes” was also released prior to February 15, 1972, and thus should not receive protection under the Federal Copyright Act.  Obviously aware of this potential problem, Mr. Johnson’s lawyers tried to minimize their reliance on the language of the federal act, and have turned instead to Illinois common law.  In addition to maintaining that he has copyright protection for “Different Strokes,’ Mr. Johnson claims that under Illinois common law, he “enjoys rights on the original sound recording.”

It certainly seems as though the un-cleared sampling of Mr. Johnson’s song was intentional.  As pointed out in the complaint, “Defendants [were] aware that Plaintiff own[ed] the copyrights to ‘Different Strokes’ as Defendants attempted to obtain permission to use an excerpt from this composition on West’s My Beautiful Dark Twisted Fantasy.”  Nevertheless, the relief that Mr. Johnson seeks seems to be a little over the top.  According to independent sources, Mr. Johnson seeks to “seize all copies of Watch the Throne, have an account of all sales and proceeds, as well as [requesting] punitive damages.”

While the royal duet has yet to file an answer in response to Mr. Johnson’s complaint, one is expected soon.

Other Parts:

Kings in Court Series: Part II

* Tierryicah D. Mitchell is a third-year law student at Wake Forest University School of Law.  She holds a Bachelor of Arts and Science in Political Science and History from the University of North Carolina at Chapel Hill.  Upon graduation in 2012, Ms. Mitchell plans to work for the federal government.

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