Kanye and Jay-Z respond to sampling claim

January 2012

Record labels, music publishing

Lawyers for Kanye West and Jay-Z have responded to the lawsuit filed by soul man Syl Johnson over a track on their collaborative album ‘Watch The Throne’. Johnson says the duo’s track ‘The Joy’ samples his song ‘Different Strokes’ without permission. Johnson’s lawsuit gives further detail saying that West’s people had approached his representatives about using the sample on his ‘My Beautiful Dark Twisted Fantasy’ album but no agreement was reached. The sample then showed up on ‘Watch The Throne‘ without a request even being made. The defence raised is primarily on technicalities relating to US copyright law. ‘Different Strokes’ dates from 1967, five years before the 1972 federal copyright protection applies. Although Johnson’s lawsuit specifically claims copyright protection under Illinois State Law, the West-Z rebuttal disputes that any such protection exists and according to their Answer: “Any claim based on the alleged use of Plaintiffs’ recording is barred because, inter alia, (a) the allegedly copied portion of the Plaintiff’s recording is not part of the musical composition; and, if it is part of the composition, (b) is not protectable and/or (c) any use was de minimis.”

In a separate matter, the estate of the late songwriter J Fred Coots is suing EMI’s music publishing company as part of a long running attempt to wrestle back control of the 1934 seasonal classic ‘Santa Claus Is Comin To Town’, under the provisions of US copyright law that allow songwriters who assign their copyrights to a third party, usually a commercial entity, to revoke that assignment, just once, after a period of time. For songs where original assignment took place after 1978 (when the current federal law termination clause was introduced) that period of time is 35 years although for pre-1978 songs it is more complicated. In all events EMI say that Coots had his only chance to terminate back in 1981  when he sent a termination letter to EMI’s predecessors who then owned the track, then but subsequently agreed a new deal, so control stayed with that publisher. That publisher was later bought by EMI. Lawyers for the Coots estate argue that the 1981 termination notice was never filed with the US Copyright Office and was therefore invalid so there fresh 2004 termination is valid.

In a similar battle, The Songwriters Guild of America has entered the legal battle between Victor Willis, the lead singer of the Village People, and Scorpio Music, the publishing company that owns the copyrights to the group’s songs, including YMCA, saying the case is an important test of a songwriters’ right to regain control of his or her work after 35 years. This week, a federal judge in California ruled the guild could file an amicus brief in the lawsuit, which many in the music industry say could be a significant test of copyright law.

See http://www.thembj.org/2011/11/sound-recording-in-2013-a-legal-brief/ and


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