No Relief for Pre-2009 Alleged Infringement Of Funk Rock Records by the Beastie Boys
By Anandashankar Mazumdar
Sept. 11 –A licensing entity for recordings by a Washington, D.C., funk rock band was barred from seeking relief for alleged infringement by the rap group the Beastie Boys that occurred before 2009, the U.S. District Court for the Southern District of New York ruled Sept. 10 (TufAmerica, Inc. v. Diamond, S.D.N.Y., No. 1:12-cv-03529-AJN, 9/10/13).
Granting in part a motion to dismiss by the Beastie Boys, the court along the way rejected several allegations of infringing samples after applying the “fragmented literal similarity” test.
Allegation That Beastie Boys Infringed Funk Recordings
Trouble Funk is a band originating in Washington, D.C., that was founded in 1978. Between 1981 and 1987, Trouble Funk released five albums. Its 1982 album, Straight Up Funk Go Go Style, featured a recording of a song called “Say What.” The 1983 album, In Times of Trouble, included “Drop the Bomb.” In 1999, TufAmerica Inc. of New York was granted the authority to license use of the works.
The Beastie Boys are a rap group founded in 1981 in New York. Their 1986 album Licensed to Ill was a smash hit and from then until 2004, they had seven platinum albums. As of 2013, the Beastie Boys had sold more than 20 million albums.
TufAmerica alleged that the recording of “Shadrach” on the Beastie Boys’ 1989 album Paul’s Boutique sampled a portion of “Say What.” Also, TufAmerica alleged that “Car Thief” on the same album sampled “Drop the Bomb.” Furthermore, TufAmerica alleged that “Hold It Now Hit It” and “The New Style” on Licensed to Ill also sampled “Drop the Bomb.”
In May 2012, TufAmerica sued the Beastie Boys, as well as its members–Michael Diamond (p/k/a “Mike D”), Adam K. Horovitz (“King Ad-Rock”), and Adam N. Yauch (“MCA”; Yauch died in 2012)–alleging copyright infringement. Also named as defendants were Universal Music Publishing Inc., Capitol Records LLC, and other entities involved in the release of the Beastie Boys recordings.
Later, TufAmerica amended its complaint to add the allegations that “Hold It New Hit It” had incorporated a sample from Trouble Funk’s “Let’s Get Small” and the Beastie Boys’ “B-Boy Boullabaisse/A.W.O.L.” had sampled from Trouble Funk’s “Good to Go.”
The Beastie Boys moved for dismissal of the claims pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim for which relief is available under the law.
Fragmented Literal Similarity Test Used
Judge Alison J. Nathan first turned her attention to the issue of substantial similarity. The court rejected the Beastie Boys’ argument that substantial similarity should in this case be measured by the ordinary observer test.
Instead, the court applied the fragmented literal similarity test and quoted from Williams v. Broadus, 60 U.S.P.Q.2d 1051 (S.D.N.Y. Aug. 27, 2001), which said that “Fragmented literal similarity exists where … parts of the pre-existing work are copied … note for note…, [t]he similarity, although literal, is not comprehensive.” Applying this test, however, required the court to determine the quantity and quality of the samples taken, the court said:
The real question at this stage–more so than the question of how to label the relevant test–is whether (as to each sample) Plaintiff has plausibly alleged that the sample is quantitatively and qualitatively important to the original work such that the fragmented similarity becomes sufficiently substantial for the use to become an infringement.
Applying this analysis, the court determined that four of the alleged six infringing samples were not qualitatively and quantitatively significant to rise to the level of infringement.
Regarding the remaining two samples, however, the court determined that the infringement claims were limited by the statute of limitations as set forth in the Copyright Act, 17 U.S.C. §507(b). Applying the three-year limit, the court concluded that TufAmerica could not seek relief for any infringement that had taken place prior to May 12, 2009.
TufAmerica was represented by Kelly Douglas Talcott of Sea Cliff, N.Y. The Beastie Boys were represented by Theodore Conrad Max of Sheppard, Mullin, Richter & Hampton LLP, New York. Universal was represented by Carletta Flora Higginson of Jenner & Block LLP, New York.
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