ENTERTAINMENT LITIGATION: BEASTIE BOYS SUED FOR ILLEGAL SAMPLING

HOP-HOP LABEL FILES LAWSUIT AGAINST GROUP DAY BEFORE MCA LOSES FIGHT WITH CANCERAdam “MCA” Rauch co-founded the “Beastie Boys” hip hop group with Michael “Mike D” Diamond and Adam “Adrock” Horovitz. Together the trio enjoyed tremendous success, selling over 40 million records, having our #1 albums and being inducted to the Rock and Roll Hall of Fame earlier this year. MCA was too ill with cancer to attend that induction ceremony. On May 4, 2012, MCA lost his battle and died at his New York home.

In timing that can charitably be called “unfortunate,” hip hop label Tuff City Music Group (TufAmerica) filed suit against MCA and the other Beastie Boys, and their various record labels, the day before MCA died. Filed in federal court in New York City, the lawsuit claims that the Beastie Boys illegally “sampled” passages from two songs from the group “Trouble Funk” and incorporated them into four Beastie Boys songs, including songs on the Beastie Boys’ 1986 debut album, “Licensed to Ill” (the album cover is depicted on the right).

After the jump, I’ll summarize what I suspect will be key issues in the case and discuss the controversy concerning the timing of the suit.

LEGAL HURDLES TO TUFAMERICA’S LAWSUIT

You can read for yourself a copy of the complaint in the case here. The label’s lawyer — my good friend and law school classmate, Kelly D. Talcott — has been forced to play defense concerning the timing of the lawsuit filing in the press. E! Online called it “awkward.” Another story called it the “worst timed lawsuit in history”. But the label and my friend prosecuting the case could face more significant legal hurdles than bad timing.

Simply put, proving copyright infringement requires evidence that copyrightable elements of a copyrighted work were copied in the new work. Thus, TufAmerica has to prove that the Beastie Boys’ songs “copied” the Trouble Funk songs (which were copyrighted works) into their new songs.

The Beastie Boys have faced this kind of lawsuit before. In 2000, the Beastie Boys were sued by a jazz flutist and composer over three notes that were supposedly copied as background elements into their “Pass the Mic” song. Ultimately, the Beastie Boys prevailed in that case because the alleged copying was “de minimis” — i.e. that the copied elements were so minimal that the “average” audience would not recognize the copying. (I’m drastically simplifying the issues and holding in that case. However, the import of that holding for purposes of this discussion is that minimal copying is not actionable infringement.)

Also, even if it proves actionable infringement, TufAmerica may not still not prevail. For example, the Beastie Boys could prevail if they prove that it was “fair use.” The main issue for fair use should be whether the Beastie Boys songs were “transformative” — that their songs added new elements which transformed the old work into a completely new work. Whether a new work constitutes “fair use” is notoriously difficult to predict. So much of the analysis will depend on how much of the Trouble Funk songs appears in the Beastie Boys songs.

Also, because the supposedly infringing Beastie Boys songs were first published in 1989, TufAmerica will have to deal the Copyright Act’s three years limitations period. In other words, TufAmerica will not be able to recover damages for any alleged infringement which took place before May 3, 2009 (three years before the lawsuit was filed). Of course, the Beastie Boys and the defendant record labels have been selling Beastie Boys songs continuously since the albums and songs were first released. And published reports are that sales of Beastie Boys songs have increased since MCA’s death.

PRACTICAL CONCERNS

My friend Kelly, TufAmerica’s counsel, is no dummy. In fact, he is a highly regarded and accomplished intellectual property lawyer. So I’m confident that Kelly is prepared for the legal hurdles he and his client face in this lawsuit.

However, what Kelly did not anticipate (and could not have anticipated) as he prepared for the filing of this lawsuit is MCA’s death. MCA’s death has resulted in an outpouring of support for the Beastie Boys — in fact leading (if published reports are correct) to an uptick in sales of Beastie Boys songs. The “unfortunate” timing of the case gives all defendants a “theme” that they could latch on to appeal to a jury. Such a theme would be irrelevant to the legal issues or to any judge. But it is the kind of theme — money grubbing opportunists suing dying/recently deceased popular artist — which could distract jurors.

Some things have been clear in the wake of MCA’s death. The Beastie Boys had an enormous impact on many people and artists. Other popular artists like the band Coldplay rushed to pay tribute to MCA and the Beastie Boys in the days following his death. (You can view the Coldplay tribute below.) Accordingly, Kelly and his client, TufAmerica, will be battling not only the legal hurdles to their case but also the popularity of the Beastie Boys and the sympathies being thrown their way following the death of one of their founders.