Notorious B.I.G. Estate Files Pre-emptive Lawsuit Over Song Sample (Exclusive)
There is no question that Biggie Smalls sampled a 1974 song. Will his heirs escape copyright liability anyway?
With various musicians being sued left and right over decades-old sampling sins, one could hardly expect a recording artist who has been dead for 17 years to be given a pass.
Now, the estate of Notorious B.I.G., the late rapper born Christopher Wallace, has filed a lawsuit seeking declaratory relief that his song "The What" on Ready to Die isn't a copyright infringement of the song, "Can't Say Enough About Mom," co-written by soul singer Leroy Hutson and Michael Hawkins.
In this case, the plaintiff admits sampling the song. Nevertheless, against alleged threats by Hutson's publishing company, the B.I.G. estate says that the sample is de minimis and fair use as only "two nonsequential tones" were used, adapted, modified and supplemented. Further, any claims to the contrary are argued to be barred as untimely. Finally, Hutson is being charged with copyright misuse for threatening legal action with alleged knowledge of no real infringement.
According to the complaint, filed Monday in California federal court, the "Can't Say Enough" sound recording was originally published in 1974 by a record company owned by musician Curtis Mayfield. In 1989, the song was returned by Mayfield to Hutson.
As for "The What," it was written in 1994 by Biggie, Osten Harvey Jr. (known as Easy Mo Bee) and Clifford Smith (known as Method Man).
Harvey was the producer, and the lawsuit says he sampled the final 1.9 seconds of "fade-out" from the defendant's song -- a faint "wah-wah" sound which oscillated between high and low frequencies. On "The What," the sample is said to have been transposed to match an E-flat minor pitch. The low-end frequencies were removed, and the high-end frequencies were chopped into short and bass tones.
Skip ahead 18 years, when Bad Boy Records was sent notice of an alleged infringement.
Over the following 18 months, the parties began negotiating with each other. At a couple of points during this time, Hutson's reps are said to have claimed 50 percent ownership in the Biggie song as well as 50 percent of income attributable to it. The plaintiff hired an expert who found limited use of "Can't Say Enough" and was confident that case law would support the position that the use was non-infringing. The impetus behind the lawsuit appears to be a February letter from the defendant's lawyer to Universal, EMI, BMI and ASCAP demanding a "hold" be placed on royalties. Last week, that was followed by another legal threat, precipitating the preemptive lawsuit.
Since there is no question that an unauthorized sample actually happened, the lawsuit tees up the question for the judge of how much use of a preexisting song is permissible. In addition, the lawsuit will address other affirmative defenses to improper sampling including statute of limitations and laches.
Then, there is the claim of copyright misuse. Given the admittance of a sample, such an allegation appears to be a stretch, but should Biggie's heirs prevail, it would go a long way toward chilling sampling lawsuits.
The Notorious B.I.G. estate is managed by his widow, Faith Evans, and his mother, Voletta Wallace. The lawyer representing them is Staci Riordan at Fox Rothschild. In 2006, Time named Ready to Die as one of the most influential albums of the past 50 years.
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