LMFAO may be shufflin’ to court for copyright infringement: sorry for party rocking?

Hustlin’ hip hop rapper Rick Ross, together with music producers “The Runners” are suing shufflin’ electropop rappers LMFAO, Kobalt Music Publishing and Kia Motors America for copyright infringement over 2011 chart topping hit “Party Rock Anthem” from LMFAO’s album “Sorry for Party Rocking”.    

The Complaint, filed by William L. Roberts, II (aka Rick Ross) and Andrew Harr and Jermaine Jackson (aka The Runners) in the United States District Court for the Southern District of Florida on New Year’s Eve, alleges that LMFAO’s “Party Rock Anthem” “copies, interpolates the lyrics, underlying music and beat of “Hustlin’” and prominently features the highly recognizable “Everyday I’m hustlin’…” phrase by featuring at key points in “Party Rock Anthem””. In other words, Rick Ross isn’t happy that LMFAO (allegedly) stole his “Everyday I’m hustlin’” line, changed it to “Everyday I’m shufflin’” and did very well for themselves.

Ross’ 2006 single “Hustlin’” was popular in its own right, having reached the number one position on the U.S. Billboard Hot Rap Tracks chart, U.S. Billboard Pop 100 chart and U.S. Billboard Hot R&B/Hip-Hop Songs chart (according to the Complaint). But LMFAO’s anthem was far more successful, having gone to number one in over ten countries, including Australia and the US and has featured in various advertisements and TV shows such as Gossip Girl and Glee. The “Everyday I’m shufflin’” phrase even features on T-shirts and other clothing items, thanks to LMFAO’s clothing line, Party Rock Clothing. Is there anyone who hasn’t shuffled (or attempted shufflin’) to “Party Rock Anthem”?

Ross and The Runners are seeking maximum statutory damages and an injunction.

Kobalt Music Publishing, as the music publishing company for “Party Rock Anthem”, has also been named as a defendant, as has Kia Motors America, for its video advertisements featuring hamsters shufflin’ to the song (check out the video below).

At the date of this post LMFAO have not yet responded to Ross’ Complaint. It is unclear whether LMFAO will deny any form of copying or whether they will argue a defence.

If this litigation was taking place in Australia, how would an Australian court look at it? In Australia, the different elements in a song (ie lyrics, melody, instrumentals, sound recording etc) may be protected separately by copyright law. Under the Copyright Act 1968, the music itself is protected as a “musical work” (usually owned by the composer), but the lyrics are protected separately as a “literary work” (usually owned by the lyricist, who may be a different person to the composer), whilst the sound recording is again protected separately (usually owned by a record company).

Ross’ complaint attempts to cover the lyrics and the music, however doesn’t argue that LMFAO have copied the sound recording of “Hustlin’”. An Australian court would assess firstly, whether LMFAO used a “substantial part” of “Hustlin’” in “Party Rock Anthem” and secondly, whether LMFAO has copied “Hustlin’”. If both elements are satisfied, copyright infringement has likely occurred.

A “substantial part” of the original song doesn’t necessarily have to consist of many musical notes or words. Men at Work learned this the hard way. Two bars of the four-bar Kookaburra song were considered to be a “substantial part” of the song, so that Men at Work’s use of the two-bar riff in “Down Under” infringed the Kookaburra song (see our blog post on the Kookaburra case here). The quality rather than the quantity of work taken is relevant. If the “Everyday I’m hustlin’” phrase is an important, essential or material part of “Hustlin’” then from an Australian law perspective, LMFAO’s use of “Everyday I’m shufflin’” is likely to be a copyright infringement.

“Everyday I’m hustlin’” is repeated over 30 times as the hook in “Hustlin’” and takes up a great deal of the song (this probably isn’t saying much for the quality of its lyrics). Looking at the lyrics alone, on the one hand, the only two words in common are “Everyday I’m”, so it would be difficult for Ross to argue that such a simple phrase has been copied. But on the other hand, the mere fact that LMFAO’s phrase has one different word may not be enough to avoid copyright infringement – hustlin’ and shufflin’ are similar. Looking at the underlying music and beat of the phrase “Everyday I’m hustlin’”, Ross may also find it tough to argue that this is a substantial part of his song – the rhythm and way in which he performs “Everyday I’m hustlin’” sounds similar to the way LMFAO perform “Everyday I’m shufflin’”, but is the rhythm alone enough to be considered an important, essential or material part of “Hustlin’”? The way Ross performs the phrase is somewhere between rapping and singing, so it doesn’t seem to be an important melody in comparison with the two-bar Kookaburra tune in dispute in the Kookaburra case. The phrase really needs the words “Everyday I’m hustlin’”, together with the rhythm to be similar to “Party Rock Anthem”. As Australian copyright law protects the music and lyrics separately, proving copyright infringement of one phrase of a song (particularly a rapped phrase) is not easy.

Even if Ross can prove the lyrics or the music are a substantial part of “Hustlin’”, he would still need to prove that LMFAO has in fact reproduced or copied his song, and that the similarity between his song and “Party Rock Anthem” isn’t simply a coincidence. Given the popularity of Ross’ hit in the US, LMFAO are likely to have heard it and given the close wording and rhythm of the way the phrase is performed in both songs, we think it likely that Ross could prove the similarity isn’t a mere coincidence.

If Ross could prove copyright infringement, in Australia a court would look at the loss suffered by Ross as a result of LMFAO’s infringement. But has the value of “Hustlin’” been adversely affected? The songs were released nearly five years apart and the similarity may have actually increased interest in the earlier “Hustlin’”. Ross could still argue that the value of copyright in “Hustlin’” depreciated due to the infringement, and a court may look at the fees that LMFAO should have paid in order to use Ross’ phrase lawfully.

Although we’re no experts in US copyright law, a major difference between US and Australian copyright law is that there is currently no general “fair use” defence for copyright infringement in Australia (however the Australian Law Reform Commission has proposed to change this – see IP Whiteboard’s Anna Spies and Maurice Gonsalves’ alert about the proposals here). The Australian Copyright Act 1968 currently only allows “fair dealing” with copyrighted works for certain purposes such as research, study, criticism, parody, satire and reporting news – none of which are likely to apply in LMFAO’s case – whereas US copyright law allows for limited use of copyrighted materials without the permission of the copyright owner if the particular use is fair, which is broader than the current Australian position. LMFAO may well argue the fair use defence in the US proceedings.  

Interestingly, Ross is no stranger to legal disputes, having recently won a battle with former drug dealer “Freeway” Ricky Ross who had claimed Rick Ross appropriated his name and likeness. The proceedings also included Warner Bros. Records, Universal Music and Jay Z as defendants.

Stay tuned for news of whether LMFAO will be shufflin’ to court any time soon. Meanwhile, you can decide for yourself by listening to the videos below.