Thursday, June 14, 2018

Three little words make a fair use

Oyewole v. Ora, 291 F.Supp.3d 422 (S.D.N.Y. 2018)

This case grants a motion to dismiss on fair use grounds, though it should have been on lack of substantial similarity in protected expression.

Oyewole is a founding member of the spoken-word group The Last Poets who created the song “When the Revolution Comes” in 1968. The song warns of a coming revolution when “guns and rifles will be taking the place of poems and essays,” with a back track of a drum beat and chants. Also: “When the revolution comes/ Transit cops will be crushed by the trains after losing their guns and blood will run through the streets of Harlem drowning anything without substance.” At the end of the song, the performers chant, “When the revolution comes (3x)/But until then you know and I know n*****s will party and bullshit and party and bullshit and party and bullshit and party and bullshit and party... Some might even die before the revolution comes” (ellipsis in original). Oyewole indicated that the “sole purpose” of the lyrics is to “challenge[ ] and encourage[ ] people to NOT waste time with ‘party and bullshit,’ but to move towards success.”

In 1993, The Notorious B.I.G. released the song “Party and Bullshit” celebrating his “hip hop lifestyle.” It begins: “I was a terror since the public school era / Bathroom passes, cuttin’ classes, squeezing asses / …” The chorus is: “Dumbing out, just me and my crew / Cause all we want to do is... / Party... and bullshit, and... (9x)” (ellipses in original). In 2012, Rita Ora released the pop song “How We Do (Party),” which begins, “And party and bullshit / And party and bullshit / And party and bullshit / And party, and party.” Further lyrics include “I get that drunk sex feeling/Yeah, when I’m with you/So put your arms around me, baby/We’re tearing up the town/‘Cause that’s just how we do.”  The opening lines recur several times throughout the song.  Oyewole alleged that the uses here “contrravened” the original purpose of the phrase as used in “When the Revolution Comes,” which was to discourage people from partaking in “party and bullshit.”

Understandably, the defendants maintained that “party and bullshit” was not protectable, but, following a pattern I find somewhat depressing, the court assumed otherwise and instead resolved the infringement issue as a matter of fair use.  Both songs transformed the purpose of the phrase “party and bullshit” “from one of condemnation to one of glorification,” … “in neither secondary work does it evince criticism or foreboding.” The Poets suggest that, as a result of the partying and bullshit, “[s]ome might even die before the revolution comes.” The phrase is “an expression of disgust and disappointment in those who are not readying themselves for the revolution.”  Not so for the accused songs, which embrace and exalt “party and bullshit” culture. Even the complaint recognized this by accusing the songs of contradicting Oyewole’s original purpose, which was to “encourage[e] people to NOT waste time with ‘party and bullshit.’ ”

Nature of the work: creative, which weighs against fair use, also published, which favors fair use.

Amount and substantiality of the portion used: one phrase. As for substantiality, “although the background track’s cutting out when the Last Poets chant ‘party and bullshit’ adds a level of gravity and importance to the phrase, the expression is not critically important to the song’s message. Instead, the song focuses on the upcoming revolution.”  [This seems like a pretty good reading, by the way; I just think it’s detrimental to the robust analysis of copyrightability/substantial similarity to do this as a matter of fair use.]

Market effect: transformativeness made market effect unlikely. Given the character and purpose from the original work, the target audiences were unlikely to be the same, and even if they were, the songs wouldn’t substitute for the original. [Note no explicit consideration of derivative markets, implicitly encompassed in the transformativeness discussion.]

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