October 17, 2011 12:03pm PT by Eriq Gardner
Kanye West and Jay-Z Sued for Allegedly Sampling Soul Musician
Syl Johnson, a respected musician who created many successful blues and soul songs in the 1960s and 1970s, has filed a lawsuit against hip hop superstars Kanye West and Jay-Z over an allegedly uncleared sample on the duo's latest album, Watch the Throne.
In a complaint filed in Illinois federal court on Friday, Johnson claims the two famous hip hop artists plus UMG and Def Jam took a portion of his song, "Different Strokes," used it on a song entitled "The Joy," and released it in August without his permission and without giving him any credit or payment.
Johnson says that West originally wanted to use the sample for his own solo album entitled My Beautiful Dark Twisted Fantasy, but that the defendant was unable to obtain permission at the time of release. After failure to clear a license for the sample on one album, West's use of the sample on another album without permission is said to be an example of knowing and willful misappropriation.
Over the years, many elder musical artists have become sensitive about illegal sampling from newer acts, and few musicians have been as litigious on this score as Johnson, who has brought to court, among others, Michael Jackson, Jefferson Airplane and Cypress Hill. He's also successfully gotten other artists, from Wu Tang Clan to Kid Rock, to pay up for use of samples.
In August, when Watch the Throne was released, Johnson's label, the Numero Uno Group, was quick to point to this legal success, writing on its blog, "Two decades and several lawsuits later, Syl Johnson is a veteran of copyright infringement cases, and has done very well for himself clearing samples from his fertile catalog...for use in numerous tracks...Island Def Jam seems to think that Syl doesn't have any fight left in him. We're betting otherwise."
Despite the bravado, Johnson's legal battles have not been without some stumbles and question marks..
Take the long-running $29 million lawsuit against Cypress Hill, accused of illegally sampling Johnson's 1969 song, "Is It Because I'm Black," on the group's 1993 sophomore album, Black Sunday.
Johnson's lawsuit was eventually dismissed in 2008; a judge found that his claims failed because under the Copyright Act, sound recordings made before February 15, 1972 are not subject to copyright protection. The Seventh Circuit Court of Appeals upheld the dismissal this past summer, leading Johnson to sue his own lawyers for malpractice for providing allegedly shoddy representation. Johnson believed that a state law misappropriation claim should have been made instead of a federal copyright allegation.
In Johnson's latest lawsuit, the musician is careful to dance around potential defects in a claim over the illegal sampling of "Different Strokes," which was released in 1967. Johnson claims a copyright on the music composition in his latest lawsuit and also says he enjoys rights on the original sound recording via Illinois common law. The latter claim will likely be challenged soon by lawyers for Kanye and Jay-Z.
Here are clips from the works in question in this lawsuit: