8:47am PT by Eriq Gardner
LMFAO Bombshell? Rick Ross' 'Hustlin' Copyright Under Examination
A lawsuit involving two chart-topping songs — one by hip-hop superstar Rick Ross, the other by electropop duo LMFAO (Stefan Kendal Gordy and Skyler Austen Gordy) — has degenerated into the kind of legal esoterica that will keep copyright lawyers in the entertainment industry up at night.
On New Year's Eve 2013, Ross, along with his producers including Jermaine Jackson, sued over LMFAO's 2010 song, "Party Rock Anthem," which contains the catch-phrase "Everyday I'm shufflin'." Ross alleged this was an infringement of "Hustlin'," off of his own 2006 album and containing the lyric, "Everyday I'm hustlin'."
On the road to trial, a Florida federal judge has made some important rulings including that a three-word phrase — at least for merchandising purposes — isn't original enough to be copyrightable.
As for LMFAO's song itself, that question could go to a jury, but hold on: The litigation has now stepped onto a new land mine.
During the course of proceedings, it was discovered that there were actually three copyright registrations on Ross' "Hustlin'." The first application came on Feb. 28, 2006, from an entertainment attorney for the production team seeking registration for an unpublished musical work. The second came on June 28, 2006, from a Warner Bros. entity seeking registration for a published musical work. And the third came on Feb. 28, 2007, from a Sony entity.
In October, the judge sent a series of questions to the U.S. Copyright Office about this situation. After review, Register of Copyrights Maria Pallante threw a wrench into the ongoing dispute between Ross and LMFAO with word that her office should have refused to issue each of these registrations. According to her letter, the earliest one was defective because by Feb. 28, 2006, "Hustlin'" phonorecords were already being distributed to numerous radio and nightclub disc jockeys and as such, the work wasn't really unpublished. The latter two applications were defective because of the earlier registration as well as incorrect dates of creation listed on the applications.
On Feb. 10, U.S. District Judge Kathleen Williams ordered supplemental briefing about the meaning of this. On Monday, the two sides filed briefs on an issue that has the potential of raising hackles in future copyright disputes.
According to the defendants, the bombshell warrants dismissal of the lawsuit. "It is now too late for them to even attempt to create valid copyright registrations for purposes of maintaining this action even assuming that the material misrepresentations could be resolved by something other than a new basic registration for Hustlin' and cancellation of the three invalid registrations," states Barry Rothberg at Greenberg Traurig in a memorandum.
His argument comes down to the proposition that a valid copyright registration is a mandatory element of a copyright infringement claim — and that the burden is on the plaintiff to demonstrate ownership. He adds that an applicant's intentions and representations don't matter, and further, that the court must give deference to the Register's opinion. Here's the full brief from the defendants.
According to Ross' side, registration doesn't confer copyright, and while it might be a requirement to have a registration before filing a lawsuit, the PRO IP Act of 2008 states that a certificate of registration satisfies the requirement regardless of any inaccurate information. It's said that Congress passed the law to close a loophole where intellectual property thieves could argue that a mistake in registration documents doomed a registration and foreclosed the availability of statutory damages. They say that the LMFAO camp has the burden of proving a fraud on the Copyright Office, and since that defense wasn't raised earlier in the lawsuit nor is there any evidence of fraud, defendants have waived it.
Plus, they say that the Register's opinion hardly invalidates the registrations absent proof of fraud. "To the extent Defendants have challenged ownership, Plaintiffs have not simply relied on the presumption of validity afforded by the registrations, but have provided proof in the form of documentary evidence and affidavits," adds Karen Stetson at Gray Robinson in a memorandum. Here's the full brief from the plaintiffs.
If the case is dismissed, this would likely become good fodder for the 11th Circuit Court of Appeals to take up.