Big Pimpin' Copyright Lawsuit
by Sue Basko, Esq.
Now is a good time for a review of the basic Copyright law that pertains to use of a sample from one song used in a new song created by someone else. There is a Copyright case on trial now in Los Angeles involving Jay Z, Timbaland, and use of a sample in a song they made. Below, we'll review the law YOU need to know to use a sample in a song you create.
Jay Z and Timbaland are testifying in a Copyright lawsuit trial that was filed against them in 2007 by the nephew of an Egyptian songwriter. The nephew claims that a 4-note flute sample from the Egyptian song used by Jay Z and Timbaland in their 1999 song "Big Pimpin'" violates his uncle's moral rights. The Egyptian nephew claims that the family never signed over the right to make a derivative work. You can read more about the case in this excellent news article by the Guardian.
Jay Z and Timbaland are testifying in a Copyright lawsuit trial that was filed against them in 2007 by the nephew of an Egyptian songwriter. The nephew claims that a 4-note flute sample from the Egyptian song used by Jay Z and Timbaland in their 1999 song "Big Pimpin'" violates his uncle's moral rights. The Egyptian nephew claims that the family never signed over the right to make a derivative work. You can read more about the case in this excellent news article by the Guardian.
The flute sample in "Big Pimpin'" is taken from the Egyptian song, "Khosara, Khosara," written for use in an old Egyptian movie. You can hear the song in the video below.
The "Big Pimpin'" case is complicated because the sample came from an Egyptian song that was not registered and using U.S. Copyright law. From the accounts of the trial, it sounds as if Jay Z, Timbaland, and their record companies did all they could to be fair. They paid the music companies representing the family of the composer for use of the song. The nephew, or his lawyer, contends that the family never signed over the right to make derivative works. The music company representing the song says the family did sign over the right to make a derivative work. This may be difficult to determine because of different laws and different languages being used by the U.S. and Egypt. There is also the issue of artist moral rights, which are recognized differently in different nations. The nephew's concern seems to be that "Big Pimpin'" has lyrics that portray promiscuous sex, and that this defiles his uncle's song. If permission was not given, this would violate the artist's moral rights. In U.S. copyright law, this right is translated statutorily into the right to control which derivative works are created. In the "Big Pimpin'" trial, the judge has ruled that the song lyrics cannot become part of the trial. This is the crux of the lawsuit and thus appears to be an error on the part of the judge, which may result in an appeal.
USING A SAMPLE UNDER U.S. COPYRIGHT LAW OR INTERNATIONAL LAWS: When you want to use a sample of a song in your work, first you need to check and see if it is under U.S. Copyright law. You can check that on the U.S. Copyright website. If the song you want to sample is under the laws of a different nation, you need to follow the laws of that nation and of the U.S. That is not easy.
If you look at the "Big Pimpin'" case, Jay Z and Timbaland involved lawyers, got contracts, and paid at least $100,000 for use of the sample. That was not good enough because the family claims it never gave up the moral rights or that it never assigned the right to make derivative works, although the music company representing the song says they did assign the right to make derivative works.
This brings up a very important lesson -- that the rights or license you are getting in any contract are only as good as all the underlying contracts, releases, and licenses. In most instances, the underlying contracts will be shaky, at best. It is important to get rock solid contracts that are valid in perpetuity for all the world and that are binding on the estate, heirs, agents, or assignees of the property.
IF THE SONG YOU WISH TO SAMPLE IS UNDER U.S. COPYRIGHT LAW and if the song you are creating will be under U.S. Copyright law, this is the important thing to remember:
THERE ARE 4 MAIN THINGS YOU NEED TO USE A SAMPLE IN A SONG:
1) MASTERS USE LICENSE. the recorded music itself has a copyright that belongs to the Owner of the Copyright on the Sound Recording that is actually being used, which will usually be a record label. The license to use the sound recording is called a MASTERS USE LICENSE;
AND (a great big important "AND")
2) PERMISSION FROM THE SONGWRITER/ PUBLISHER TO CREATE A DERIVATIVE WORK. The Songwriter is usually represented in such matters by a PUBLISHER. The songwriter or publisher may or may not give permission to use the sample. Permission may be given or withheld for any or no reason and may be on any terms the songwriter or publisher desires.
The right to create a derivative work is one of the main rights given to a songwriter in U.S. Copyright law. This is the statutory place where "artist moral rights" have been codified, to some extent - although artist moral rights, as they exist in other nations, are more all-encompassing. Under U.S. Copyright law, the right to make a derivative work is where the artist gets to say yea or nay to the use of his or her work in someone else's new work. In the "Big Pimpin'" case, the family of the Egyptian songwriter is saying that their uncle's song, "Khosara, Khosara" is defiled by use of its characteristic flute notes being sampled and placed into a song with immoral or indecent lyrics.
In the U.S., if a songwriter wants to use a sample of a famous song, it is very common that the songwriter or publisher will demand to see the lyrics and possibly even to hear a simple mock-up recording of the proposed song BEFORE permission is given for use of the sample. A songwriter or publisher may even want control over any music video for the song created with the sample.
AND (and this is the biggest "AND" of all)
3) MONEY MONEY MONEY. You have to PAY to use a sample. You have to pay a flat fee and royalties per sale for the MASTERS USE LICENSE. That money goes to whoever owns the sound recording you are using, usually a record label. And you have to pay the songwriter/ publisher. That might be a flat fee, or it might be a flat fee plus an amount per each copy sold.
The contracts that you form with the Songwriter/ Publisher and with the Record label/ Owner of the Copyright on the Sound Recording will tell what price will be paid, how, when, and all the pertinent terms.
In most instances, most record labels and most publishers will only allow samples of their songs to be used by a song creator who has a good track record, a lot of potential for sales, a plan for a good song and good usage of the song, plans to create a new song that will not interfere with the sales or reputation of the original song from which the beat is taken, and MONEY to pay them upfront.
AND (and and and)
4) ROCK-SOLID CONTRACTS written to cover all contingencies.
If a sample is used in a song that becomes a big hit, lawsuits will come out of the woodwork. In the "Big Pimpin' " case, it sounds as if Jay Z and Timbaland took every conceivable step to be fair, to get contracts for use of the music and for the underlying songwriting, and to pay everyone fairly. They say the family has been paid all along for use of the song. Success and money attract lawsuits. In the U.S., generally speaking, a nephew would have no standing to sue on behalf of rights that belong to his uncle. It is unclear (at least to me) how he has standing to bring this lawsuit in California, unless he was appointed the representative of the estate under the laws of Egypt. It also sounds as if the lawsuit is trying to divide the right to make a derivative work from artist moral rights over that derivative work, but in U.S. copyright law, that is not valid, and the lawsuit is taking place in a U.S court.
In the U.S., it is the obligation of the artist who is allowing someone else to create a derivative work to take precautions IN ADVANCE to make sure that the new work will be suitable to cover what are in essence, the artist's moral rights. In the U.S., we cannot give the right to create a derivative work and then complain afterwards that it does not meet our standards. THEREFORE, any contract formed to give the right to create a derivative work should be based on information given BEFOREHAND regarding the proposed project and the people who will be creating it, and subject to approval AFTER its creation. This is where the right to create a derivative work branches off from moral rights. In other nations, one might give the right to create a derivative work and then still complain after its creation that it violates the moral rights of the original artist. In U.S. Copyright law, if you give permission for a derivative work to be created, the onus is on you, as the owner of the copyright on the original work, to ascertain in advance whether the derivative work will meet your approval. Under U.S. copyright law, once you give permission for a derivative work, unless it violates a specific provision of a contract you have formed with the person creating the derivative work, you do not have grounds to complain. In the U.S., the artist's moral rights are not separate and apart from the right to create a derivative work. In other nations, the artist's moral rights are separate and sacrosanct rights.
Conversely, any contract to allow creation of a derivative work must be meticulously drafted to avoid having one's creation used in a new work that may harm the reputation or morals of the creator of the original. The "Big Pimpin'" case is a great example of this. The original song, "Khosara, Khosara," was created by an Egyptian for an Egyptian movie. Egypt is a predominantly Muslim nation, which has become more fundamentalist in recent years. It is entirely possible the family of the songwriter may face scandal or punishment if it appears they gave permission for the sample to be used in "Big Pimpin,'" the lyrics to which are below. The music video, shown above, portrays a drug hustler fantasy of having a big boat filled with dozens of beautiful women wearing bikinis.
"Big Pimpin' (Extended)"
(feat. U.G.K.)
[Jay-Z]
Uhh, uh uh uh
It's big pimpin baby
It's big pimpin, spendin G's
Feel me.. uh-huh uhh, uh-huh
Ge-ge-geyeah, geyeah
Ge-ge-geyeah, geyeah
You know I - thug em, fuck em, love em, leave em
Cause I don't fuckin need em
Take em out the hood, keep em lookin good
But I don't fuckin feed em
First time they fuss I'm breezin
Talkin bout, "What's the reasons?"
I'm a pimp in every sense of the word, bitch
Better trust than believe em
In the cut where I keep em
til I need a nut, til I need to beat the guts
Then it's, beep beep and I'm pickin em up
Let em play with the dick in the truck
Many chicks wanna put Jigga fist in cuffs
Divorce him and split his bucks
Just because you got good head, I'ma break bread
so you can be livin it up? Shit I..
parts with nothin, y'all be frontin
Me give my heart to a woman?
Not for nothin, never happen
I'll be forever mackin
Heart cold as assassins, I got no passion
I got no patience
And I hate waitin
Hoe get yo' ass in
And let's RI-I-I-I-I-IDE, check em out now
RI-I-I-I-I-IDE, yeah
And let's RI-I-I-I-I-IDE, check em out now
RI-I-I-I-I-IDE, yeah
[Chorus One: Jay-Z]
We doin.. big pimpin, we spendin cheese
Check em out now
Big pimpin, on B.L.A.D.'s
We doin.. big pimpin up in N.Y.C.
It's just that Jigga Man, Pimp C, and B-U-N B
Yo yo yo.. big pimpin, spendin cheese
We doin - big pimpin, on B.L.A.D.'s
We doin.. big pimpin up in N.Y.C.
It's just that Jigga Man, Pimp C, and B-U-N B
[Bun B]
Nigga it's the - big Southern rap impresario
Comin straight up out the black bar-rio
Makes a mill' up off a sorry hoe
Then sit back and peep my sce-nawr-e-oh
Oops, my bad, that's my scenario
No I can't fuck a scary hoe
Now every time, every place, everywhere we go
Hoes start pointin - they say, "There he go!"
Now these motherfuckers know we carry mo' heat than a little bit
We don't pull it out over little shit
And if you catch a lick when I spit, then it won't be a little hit
Go read a book you illiterate son of a bitch and step up yo' vocab
Don't be surprised if yo' hoe stab out with me
and you see us comin down on yo' slab
Livin ghetto-fabulous, so mad, you just can't take it
But nigga if you hatin I
then you wait while I get yo' bitch butt-naked, just break it
You gotta pay like you weigh wet wit two pairs of clothes on
Now get yo' ass to the back as I'm flyin to the track
Timbaland let me spit my pro's on
Pump it up in the pro-zone
That's the track that we breakin these hoes on
Ain't the track that we flow's on
But when shit get hot, then the glock start poppin like ozone
We keep hoes crunk like Trigger-man
Fo' real it don't get no bigger man
Don't trip, let's flip, gettin throwed on the flip
Gettin blowed with the motherfuckin Jigga Man, fool
[Chorus Two: Bun B]
We be.. big pimpin, spendin cheese
We be.. big pimpin, on B.L.A.D.'s
We be.. big pimpin down in P.A.T.
It's just that Jigga Man, Pimp C, and B-U-N B
Cause we be.. big pimpin, spendin cheese
And we be.. big pimpin, on B.L.A.D.'s
Cause we be.. big pimpin in P.A.T.
It's just that Jigga Man, Pimp C, and B-U-N B, nigga
[Pimp C]
Uhh.. smokin out, throwin up, keepin lean up in my cup
All my car got leather and wood, in my hood we call it buck
Everybody wanna ball, holla at broads at the mall
If he up, watch him fall, nigga I can't fuck witch'all
If I wasn't rappin baby, I would still be ridin Mercedes
Chromin shinin sippin daily, no rest until whitey pay me
Uhhh, now what y'all know bout them Texas boys
Comin down in candied toys, smokin weed and talkin noise
[Chorus Two]
[Jay-Z]
On a canopy my stamina be enough for Pamela Anderson Lee
MTV jam of the week
Made my money quick then back to the streets but
Still sittin on blades, sippin that ray
Standin on the corner of my block hustlin
Still gettin that cane
half what I paid slippin right through customs
It'll sell by night its extra white
I got so many grams if the man find out
it will land me in jail for life
But im still big pimpin spendin chesse
with B.U.N. B, Pimp C, and Timothy
We got bitches in the back of the truck, laughin it up
Jigga Man that's what's up
[Chorus]