Go, Shorty, It's Your Copyright -- Not

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"The law is a seamless web."  Whether Oliver Wendel Holmes or Frederick Maitland first made that enigmatic claim, one way to put it to the test is to set aside the familiar cubbyholes we use to sort out legal issues -- antitrust, copyright, UCC, trusts & estates -- and instead pick a theme.  My fellow blogger Geoff Gerber has picked comic books as his theme.  Study the law of comic books, O Spidey, and you may indeed find yourself in a seamless web.  My current seamless -- or perhaps seamy -- web is the realm of dirty words and dirty pictures, a/k/a, "Censorship & the First Amendment," a course I teach at Washington University School of Law.

But if you'd prefer to earn a Juris Doctor Dre or would rather be sippin' on Gin & Jurisprudence, try the Law of Hip Hop, which traces its origins to the Mack Daddy of "fair use" cases, Campbell v. Acuff-RoseHow can you not love a U.S. Supreme Court decision that quotes these timeless lyrics from Luther "Luke" Campbell's version of the Roy Orbison classic, "Pretty Woman":

Big hairy woman, you need to shave that stuff
Big hairy woman, you know I bet it's tough
Big hairy woman, all that hair it ain't legit
Cause you look like "Cousin It"
Big hairy woman

Ready for a little seamless web action, Shorty?  The latest Hip Hop copyright decision pits rap artist 50 Cent against the very same Luther Campbell. This time, the Campbell song at issue is, "It's Your Birthday," which ended up in the coffers of  Lil' Joe Wein Music, a publisher that acquired the copyright at a bankruptcy sale of Campbell's assets.  Lil' Joe sued rapper 50 Cent for copyright infringement over the song, "In Da Club," all as more fully described in the Eleventh Circuit's recent unpublished opinion in Lit' Joe Wein Music v. Jackson.  Fans of "In Da Club" can do the chant, which the court reproduces in the opinion:

Go Shorty,
It’s your birthday,
We gon’ party like it’s yo birthday,
We gon’ sip Bacardi like it’s your birthday,
And you know we don’t give a f---
It’s not your birthday.

The issue was whether the refrain "Go, Shorty, it's your birthday" infringes the refrain "Go, ____, it's your birthday" in Campbell's song.  In the summary judgment decision (which the 11th Circuit incorporated verbatim as an attachment to its one-paragraph per curiam opinion), the district court takes us on an historical tour of uses of the refrain "Go, _____, it's your birthday" that predate Campbell's song. The death blow, though, is delivered by Luke himself, who "admits that he did not create the phrase but borrowed it from popular chants at the time."  The court concludes that the phrase "was a common hip-hop chant at the time" of Campbell's song and thus "a common, unoriginal, and noncopyrightable element of the song [that] is not entitled to copyright protection."

So we slide along our seamless web from an infringement suit against Luther Campbell's song that failed because of his "transformative use" of copyrightable material to an infringement suit based upon Luther Campbell's song that failed because of his nontransformative use of noncopyrightable material.

Go, Holmes, it's your birthday.

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