Tuesday, March 31, 2009

A look back at one of Wyclef Jean's performed legal dramas

One of the most interesting and critically acclaimed albums in recent years was Wyclef Jean's The Carnival, which was released an incredible 12 years ago. This album combined traditional hip-hop with French and Haitian Creole influences and featured a host of characters from the Neville Brothers to Lauryn Hill, Celia Cruz to Barry Gibb. Wyclef brought about a change in the way hip-hop was done, paving the way for experimental hip-hop like Common's Electric Circus and Lupe Fiasco's Food & Liquor. Wyclef helped (He was surely not the only force at play.) hip-hop to transition out of the gansta rap style that domianted much of the late 80's and early 90's. With that transition, hip-hop began to influence a steadily larger segment of the population.

Several of the interludes depict courtroom dramas and many of the songs address important urban problems with policing, drug crimes, gun violence and love. It's always interesting to consider the ways in which hip-hop artists depict the legal system. For better or worse, these messages are being consumed by young and old alike. It's often much easier to throw in the latest CD or download the iTunes single of the week than it is to turn on CNN or CourtTV. What impact does this different sort of legal knowledge have on clients that pass through our doors as lawyers, scholars, activists, and teachers? One such interlude, Words of Wisdom, unfolds...

Hello, boys and girls.Welcome, to Wyclef Words of Wisdom
Have you ever been sitting in your
house at two o'clock in the morning
and you get a mysterious phone
call from a girl that you don't know?
(A female begins talking seductively)
Now, hold on, think with your mind
and not with your pistol
'Cause if you invite her over
this is what might happen:

Rape! Rape!
Rape! Rape!
Rape! Rape! (What the... Yo, yo, yo...shit!)
Rape! Rape!
Rape! Rape!
Rape! Rape!

Cop: Freeze! Put your hands in the air!
Wyclef: Officer, you don't understand.
She called me. I was sleeping.
I was minding my business.
Cop: I don't give a flying fuck
about two bits about a piss.
You're fuckin' guilty. (Yes, yes)
Wyclef: Nobody's protected.

Wyclef's message here is important. What rights are being protected? Who possesses those rights? And who enforces them? These questions are not solely the questions of urban youth, but also of our constitutional and criminal law scholars. The impact that hip-hop's recorded legal dramas have on us must be important.

Also, authenticity is an important avenue of investigation. What is it that allows hip-hop artists to proclaim X, Y, or X about the criminal justice system? Must you have been to jail to comment on jail? The predominate reason I went to law school was to better understand the system with which I supposedly disagreed. Now that I have a better understanding of this country's system of law and order, I feel that my "street cred" as a critic of that system is enhanced, but I will never have the experiences with the system that many have.

So where is the locus of knowledge? I can find knowledge in government reports, court cases, and law review articles, but I can also find knowledge in my own experiences and the experiences others convey to me. The street corner preachers that reside on U Street in DC, Queens Bridge in NYC, and Market Square in Pittsburgh also represent loci of knowledge. Unfortunately, these sources often go untapped in legal scholarship.

The questions I leave to this blog's contributors and readers are: Where do we get legal knowledge? Who controls what knowledge may be considered legal in nature? And, how do recorded legal drams affect the way we (society) perceive legal institutions?

-Nick J. Sciullo

(Photo of Wyclef's The Carnival by Sony Music. Photo of Ben's Chili Bowl by http://www.sogoodblog.com/)

Litigation Update: Weezy’s Copyright Conundrum, Queen Latifah’s Legal Woes, & Prodigy’s Prison ’Suit

On March 18, U.S. Magistrate Judge Daniel E. Knowles III ordered Dwayne A. Carter, a.k.a. Lil Wayne, to turn over all documents listing any income, advances and royalties the artist has received from sales of his latest album, Tha Carter III. The order was the latest development in Urband & Lazar Music Publishing, Inc. v. Dwayne A. Carter, a copyright infringement suit alleging that Carter sampled “Once”, a song written and performed by Karma Ann Swanepoel and published by Urband & Lazar, without obtaining a licensing agreement from the plaintiff.

The song at the center of the dispute, Carter’s “I Feel Like Dying”, prominently features Swanepoel’s voice, lyrics and musical composition. Although the song ultimately did not make the final cut of Tha Carter III, the plaintiffs are seeking damages and an injunction prohibiting Carter from continued use of the song. The suit alleges that Carter posted “I Feel Like Dying” on his MySpace page, allowing over 16 million people to download the song without acknowledging the expropriation of the plaintiff’s work. The suit further alleges that Carter has won critical acclaim and boosted concert ticket sales through his use of the song.

(Compare “Once” and “I Feel Like Dying”)

In his response to the Plaintiff’s Motion to Compel the documents, Carter claimed that because the song was not included on the album or otherwise sold for a profit, the plaintiff could not show the requisite “reasonable relationship” between the allegedly infringing use and the profits from Tha Carter III, and therefore was not entitled to discovery of records relating to the sale of his album. However, in his order, Judge Knowles noted that the plaintiffs are claiming that Carter received indirect profits from his use of the song; thus, they do not have to establish such a “reasonable relationship.”

While a settlement may ultimately prove to be in Carter’s best interest, don’t expect him to be cowed by the specter of IP litigation. The Urband & Lazar case is the third copyright infringement claim filed against Carter in the past 18 months.

* * * * * * * * * *

Dana Owens, a.k.a. Queen Latifah, is also experiencing her share of March legal madness. A pair of women claiming to be former employees of Owens filed separate breach of contract suits against the hip hop mogul in Manhattan Federal Court on Monday.

Cosmetologist Roxanna Floyd and stylist Susan Moses claim they are owed $700,000 and $300,000, respectively, for work performed on Queen Latifah’s CoverGirl ad campaign and “Curvations” line of intimate apparel.

Just nine months ago, Owens was involved in a breach of contract suit against Perfect Christmas Productions, which she said failed to pay her $275,000 for her role in the movie The Perfect Holiday.

* * * * * * * * * *

Finally, Albert Johnson, a.k.a. Prodigy (of Mobb Deep fame), has managed to remain in the news despite serving a 3 ½ year jail sentence as a result of charges brought under New York City’s strict handgun laws.

On March 23, Johnson filed documents in Manhattan Supreme Court alleging that Vox Music Group has failed to pay him over $30,000 in royalties related to an agreement in which Vox was to translate Johnson’s H.N.I.C. 2 album into over 1,400 languages. Vox uses 10-minute voice samples from artists to create completely translated songs.

No word on whether “Shook Ones Pt. II” sounds as ominous in German as it does in English.

Monday, March 30, 2009

It's Hard Out Here for a "Pimp", Even on Commercial Radio

"Every Black Man who goes in the studio has always got two people in his head: him, in terms of who he really is, and the thug that he feels he has to project—the performance thug."

- Hip Hop: Beyond Beats and Rhymes

Hip Hop group Three 6 Mafia won an Oscar for best original song with "It’s Hard Out Here for a Pimp", which was part of the soundtrack for the movie Hustle and Flow. Given that Three 6 Mafia is the second Hip Hop group to win an Oscar, it is obvious that Hip Hop has become mainstream. The Telecommunications Act of 1996 has strengthened corporate control of radio stations and has allowed for the commodification of Hip Hop music. Corporate control of radio has stifled social commentary and diversity present in "old-school" Rap and Hip Hop. Instead, corporate control has encouraged the proliferation of Gangsta Rap and the Gangsta Image, which has become the de facto voice of contemporary Hip Hop culture. Although some Gangsta Rappers are "pimping" this image for fame and money, some are also “pimping” for the opportunity to include socially conscious and relevant lyrics on their albums.

This Gangsta image is steeped with racial and sexist stereotypes about urban Black men and women. Introduced to the consuming audience is the n***a persona who is a Gangsta, making his money as a pimp, hustler, drug dealer or killer. The Black woman B***h or ho is a hypersexualized vixen intent on bringing the Gangsta down via sexual manipulation or even violence. The Gangsta Rap currently dominating the nation’s radio airwaves transmits misogynistic and violent messages (directed at other Black men and women).

While promoting the image of the outcast and outlaw, Gangsta Rap also promotes excessive consumption of sneakers, jeans, colognes, champagne, cars, and sports drinks. Given the hyper-commercialization of the Gangsta image, radio station owners have clamored to attract this urban consuming audience, which studies have shown is primarily White, male, and suburban. Socially conscious Rap rarely gets played because radio station owners fear losing advertising revenue as a result of declining white suburban listeners.

In the late 1970s, Hip Hop rose out of the ruins of a post-industrial and ravaged South Bronx as a cultural expression of young, urban Black and Latino men. Written off and rendered invisible by White and Black politicians, these young men were isolated and ignored in what was categorized as a dying city. Rap and Hip Hop allowed these young men to celebrate and live their lives.

Through radio air play, these young men attained visibility from an otherwise marginalized existence in America. In fact, Rap would be proclaimed as the Black CNN. Many rappers gave voice to what would have otherwise remained unseen by the larger dominant American public: police brutality, poverty, and urban deterioration. With its confrontational style, Rap defied both Black and White middle class norms. Rappers spoke in their own voice and on their own terms, as members of a historically marginalized segment of America's population living in America's blighted urban areas.

Today, although Gangsta Rappers have glorified the very racialized and stereotyped images that have contributed to their exclusion and repression, they have reaped more financial reward than any other generation of Black activists, musicians, and artists.

Not unlike the originators of Rap, today’s Gangsta Rappers have limited societal visibility and resources. They have achieved a modicum of commercial success, even while some have sown seeds of resistance in a very mass-mediated and corporate dominated space. Such resistance receives much less attention than the Gangsta Image. Although such resistance may not necessarily translate into a vision of a more just society or a call for a social movement, it nevertheless serves, in a subversive way, as a challenge to the corporate and dominantly inscribed Gangsta Image.

For example, at the very sites where the commodified Gangsta Image is created - albums containing the Gangsta Rap lyrics - some rappers squeeze in a few tracks subverting the very image of the Gangsta. In “Moment of Clarity” on The Black Album, Jay-Z, a multi-platinum Gangsta rapper, asserts that he would not make any money if he rapped positively like Talib Kweli or Common:

"If skills sold, truth be told, I'd probably be
lyrically, Talib Kweli
Truthfully I wanna rhyme like Common Sense
But I did five mill' - I ain't been rhymin like Common since
When your cents got that much in common
And you been hustlin since, your inception
Fuck perception go with what makes sense
Since I know what I'm up against
We as rappers must decide what's most important
And I can't help the poor if I'm one of them
So I got rich and gave back, to me that's the win/win"

Given his (and most rappers') former situation as a young Black man in urban America who hustled to make ends meet, he declares that he had to make the best of his situation and rap about what made money.

Still other songs, like Jadakiss' "Why?" on his Kiss of Death album, take on a clearly political and serious tone (although it is wedged between other songs glorifying the Gangsta life). In it, he suggests that George Bush had information about the September 11th terrorist attacks on the World Trade Center before it happened.

These songs obtain much less visibility via radio air play. However, these rappers’ lyrics suggest a 21st century double-consciousness reminiscent of W.E.B. DuBois. The rappers are aware that the music industry is exploiting them, but they have chosen to take on the corporate-created and consumer-driven public image.

Ironically, the proliferation of the mass-mediated Gangsta Image has begun to foster a much needed discourse within the Black community on issues related to racial stereotypes, misogyny and violence - issues that pre-date Hip Hop and Gangsta Rappers. Neither the Gangsta Rappers’ subverted resistance to the Gangsta Image nor this renewed racial discourse justifies the virulent misogyny and violence in Gangsta Rap lyrics and images. However, the subversive maneuvering of Gangsta Rappers suggests that Gangsta Rappers are not just being "pimped", but are doing a little "pimping" of their own.

Historically, radio played an important role in providing a forum for socially conscious Hip Hop cultural and political expression. The 1996 Telecommunications Act led to the consolidation and corporate takeover of radio stations, which has had a deadening effect on positive discourse among America’s young, urban, Black men, through Rap and Hip Hop. As a result of the 1996 Act, radio airplay is no longer balanced, but instead heavily slanted towards the racialized and sexualized image of the Gangsta Rapper for the purpose of promoting consumption. More space needs to be made on the radio airwaves for socially relevant Hip Hop, and the 1996 Telecommunications Act must not stand in the way.

- Akilah Folami

Note: A version of this post first appeared on the Talking Justice blog.

Saturday, March 28, 2009

T.I.’s Road to Redemption: A Success Story or the Same Old Story?

In many ways, it was a grey day in Atlanta. It was foggy and dark. People were visibly tired of the intermittent rain that stopped just enough to fool you into walking your dog.

It was also a grey day in Atlanta because one of its native sons, TI (a/k/a TIP a/k/a Clifford Harris, Jr.) was sentenced in federal court to a year and one day in jail. There was more to his sentence – a great deal more (DNA testing, forfeiture of property, a $100,000 fine, community service, drug testing, financial audits, three years probation, drug testing) - but that one year and one day is what had many of the folks on the street in Atlanta a little bit depressed. In addition to the Grady Memorial Ambulance blasting “Dead and Gone” (his cut with Justin Timberlake), I saw that the people most affected by the news of the sentence were black working class folks. Some were saying that a year and a day sentence for federal weapons charges is damn near nothing. Others were saying that any time in jail is too much time. Everyone I overheard talking about it seemed to feel this particular pain well. Whether it’s because they’ve been in the shoes of T.I.’s partner, Tameka Cottle, or his six children, or they know first hand what lies ahead for T.I. when he begins his 366 day journey into darkness - I can’t be sure. My guess is that being a working class black person in America, especially in the south, means you know a little something about jail.

There is an upside to all this. It seems as thought T.I. has remained the ‘stand up’ guy with the sweet smile and mischievous twinkle we have come to love. He seems to have sobered and blossomed over the year and a half since his bodyguard (turned informant) tried to sell him weapons in a Walgreens parking lot. He does not seem to be the same implosive/explosive young man accused or capable of assaulting a female security guard at a mall in Tampa. He seems to genuinely care about the community service activities he is forced to do by the court.

We will have to wait to see what happens once Atlanta’s native son hits the bricks next year sometime. Will he still have that smile and twinkle when he returns from jail hell? Will he return to the world as whole as one can be after prison and continue his good works not solely because the court told him he had to? Or .... I’m not even gonna speak it. Let’s just wait and watch and keep the brother in our hearts.

- Pamela D. Bridgewater

(Photo by Reuters)

Friday, March 27, 2009

Are GOP Politics and Hip Hop Sensibilities Compatible?

(Note: Every Friday, hiphoplaw.com contributors will respond to a hot-button issue related to the intersection of hip hop, law and culture.)

Pamela D. Bridgewater:

"First off, the question is based on the false premise that the hip hop nation is closely associated with any mainstream political party, including the Democratic party. This last election was a phenomena, and we all know why. If the hip hop nation was a Democratic party we would have had a different result in 2004. And if the GOP had any idea as to how to draw in the hip hop kids – they would have done so in 2008! Now, to be sure, the hip hop nation, the Demoractic and Republican parties have a lot in common – like capitalism, hyper consumerism, anti-queer sentiment, anti-reproductive freedom, and the failure to adequately work toward eliminating the root causes of poverty and oppression. But, since many rappers grew up with a picture of either MLK or JFK (often both) on their nana’s walls, they are more familiar with, and thus lumped in, with the Dems. But in order to understand the schism between hip hop and mainstream political parties, one has to look back to 1995-97 and pick out two words: COP KILLER.

Like Mumia Abu Jamal and Assata Shakur, the hip hop nation will forever (forever ever forever ever!) be inconsistent with the mainstream political parties because of its fear and loathing of the police. And further, the GOP takes particular pride in hyping up the fear part of that relationship. Yet, members of both parties cringed when ICE T dropped Body Count in the Rodney King era and was forced to choose to pull it from the album. Since then we can track several of rap’s reconciliations. Yet, of all the contested relationships between rap and the larger society and within rap itself – the tumultuous relationship between rap’s artists (and their constituencies) and the police have never been reconciled. As long as ICE-T and others (except Warner Brothers) stand by the following lyrics:

Fuck the police, yeah!
Fuck the police, for darryl gates.
Fuck the police, for rodney king.
Fuck the police, for my dead homies.
Fuck the police, for your freedom.
Fuck the police, don’t be a pussy.
Fuck the police, have some muthafuckin courage.
Fuck the police, sing along.
Cop killer!
Cop killer!
Cop killer!
Cop killer!”

The major political parties’ pro police, pro enhanced crime enforcement, pro prisons message will always seem diametrically opposed to hip hop and rap and gangsta rap. Michael Steele and President Obama have their work cut out for them."

D. Aaron Lacy:

"The GOP and the hip hop movement will never be compatible. In many areas, the GOP’s stance is the complete opposite to what the hip hop generation believes in. If the GOP wants to reach out to the hip hop generation, it must change its fundamental beliefs that are the bedrock of the Republican Party. Any effort by the GOP to reach out to the hip hop generation must be more than mere dressing up of the same conservative message. If all the GOP does is use hip hop slang in an attempt to make it seem like it relates to the hip hop generation, it will do nothing more than alienate more of the voters that they seek to win. In addition, that attempt will more than likely alienate many of the voters they currently have.

Hip hop culture is more than just words. It’s an attitude and it’s a way of life. Recently, Michael Steele urged the GOP to acknowledge their mistakes and commented “Tell America: We know the past, we know we did wrong – my bad.” A Minnesota Congresswoman followed Steele by proclaiming “You be da man!” It’s this type of superficial banter that I speak of above. Behaving like this will do nothing but give late night talk show hosts things to make fun of the GOP. Watching Michael Steele act this way is like watching Steve Martin “act black” in the movie Bringing Down the House.

In order for the GOP to be compatible with the hip hop movement, it would have to remake itself completely to give the people what they really want (not slang). That is just not something that I see happening anytime soon, if ever."

Nick J. Sciullo:

"Hip-hop is not bi-partisan, but that does not mean that there is no room for conservative politics. Music should open up space where multiple actors can engage in the creative process. There are no bars to participation, save a modicum of talent. If we deny conservatives the ability to participate in hip-hop, then we force hip-hop to lose its focus. Does this mean that conservative hip-hop will shortly replace emo-rap as the newest fad? No. Hip-hop is still the domain of liberal activism, but as with any musical genre or culture, it should be open to new participants.

Hip-hop has traditionally been rebel music, but now the rebellion seems to have died down. How revolutionary is hip-hop today? Was Nas correct when he asserted that hip-hop was dead? To argue that hip-hop is not as liberal as it might wish to be is a persuasive argument. The politics of major corporations, White-record label ownership, and manipulative disc jockeys remind us that hip-hop is indeed a business and not a naïve liberal revolution. To claim, self-righteously, that hip-hop will exist forever or that hip-hop has no room to progress would be a horrible blow to hip-hop’s potential. Hip-hop must move forward. Artists must do new things, songs must sound different, recording machinery must be improved, and so on.

Michael Steele’s recent call for a union of hip-hop and conservativism rings hollow. It sounded desperate, with no context. Steele has not sufficiently explained how he plans to achieve this hip-hop makeover, nor does he give the impression that he has the tremendous knowledge of hip-hop needed to change Republican politics as usual. I don’t know how the Republican Party Remix of 2009 will go, but my guess is not well."

(Image courtesy of nyc.indymedia.org)

Thursday, March 26, 2009

A Tragic Loss for Historians, Race Scholars, and Activists

Yesterday we lost a pillar of the scholarly community. John Hope Franklin, Professor Emeritus of History and at Duke University and Professor of Legal History at Duke Law School, passed away on March 25. Franklin was the rock of the modern African-America studies movement, an award-winning author and researcher, and a member of the NAACP Legal Defense fund led by Thurgood Marshall that litigated the Brown v. Board of Education case.

Franklin was the first Black to hold an endowed chair at Duke and the first Black President of the American Historical Association. President Barack Obama offered the following comment: ''Dr. Franklin will be deeply missed, but his legacy is one that will surely endure.'' The New York Times has run a powerful obituary that may be read here.

His seminal text, From Slavery to Freedom, was required reading for many an undergraduate. I remember distinctly the first time I opened the text and felt the harsh legacy of slavery come alive. It is a text as crisp as it is informative and perhaps the greatest text on slavery yet written. Franklin was a prolific scholar, publishing some of the greatest texts on slavery.

Although I never had the privilege of meeting Dr. Franklin, I feel in some small part guided by his attention to detail and his passionate pursuit of justice. Franklin told the Associated Press in 1995: ''I want to be out there on the firing line, helping, directing or doing something to try to make this a better world, a better place to live."

These are words we can all take to heart. In studying the law, and hip-hop's relationship to it are not we simply looking for a way to make the world better? Should not the goal of activism, scholarship, and thought be to make the world a better place to live? Dr. Franklin walked the walk and along that journey he taught many of us what it meant to be a scholar and what we could do to make our position in the world one of activism and struggle.

- Nick J. Sciullo

(Photo by Derek Anderson/The New York Times)

A Hip Hop Makeover of the GOP

Michael Steele, current chair of the Republican Party, very famously stated recently, that the GOP needs a hip hop makeover. Acknowledging a festering GOP concern that the party is becoming “regionalized,” is losing relevance and that a strong need exists to reach out “beyond our comfort zone,” Steele promised some “off the hook” public relations plans to win over the hip hop nation. Steele believes that Republicans need to “convey that the modern-day GOP looks like the conservative party that stands for principles. But we want to apply them to urban-suburban hip-hop settings.”

Meanwhile, recent rumblings around Washington, D.C. seem to indicate that reporters and pundits believe that President Barack Obama is resonating differently with his white and African American constituents. In the article “Blacks, whites Hear Obama Differently” the author opines that President Obama’s occasional slang, his loping gait and some of his mannerisms signal to the black community that he is “down” in a way that is largely “missed” by the white community. Recently, the President responded to a cashier “nah, we straight” when asked if he needed change, and on the campaign trail, Obama reminded voters not to be “bamboozled” by negative politics. These terms, "nah, we straight" and "bamboozled" say something very specific to those in the black community while the terms “sail over the head” of most whites.

As Michael Steele plans his wooing of the hip hop community, one thing that must be recognized, is that for the hip hop generation, authenticity and “being real” is sacrosanct. And Michael Steele and Barack Obama provide incredibly divergent examples of authenticity, at least to the hip hop nation.

At a recent symposium at the West Virginia University College of Law, Talib Kweli called President Obama not just our first black president but our first hip hop president. I think there is much more to this than the mere fact that Jay-Z appears on the President’s iPod. President Obama authentically connects with not just black folks, but with the hip hop generation in a staggering way. Obama was endorsed by hip hop superstars, up and down the coasts. Obama’s troops, those that ushered him into the White House, were on the ground in EVERY state, and were overwhelmingly young, overwhelmingly diverse and ultra devoted. As Cornel West mentioned at the same symposium at WVU Law, when West was campaigning in the early days for Obama in Iowa, when the foot soldiers broke up from campaigning at night, the volunteers were not just listening to, but were feeling hip hop. And according to West, at that time, they were young and were mostly white.

Obama’s verbiage, gait and style, to resonate with the hip hop nation, HAS to be authentic. If hip hop is about anything, it is about "being real" and this is where Michael Steele fails. Steele’s dated references to “bling bling” and “off the hook” p.r. plans redound as inauthentic and very much, not “real.” It is difficult to imagine a single member of the hip hop generation being attracted by Steele's attempt to use hip hop lingo or language to attract a new breed of GOP voter. The words are inauthentic; the mission is inauthentic; and the outreach seems doomed to inauthenticity. Michael Steele needs to be real, to garner the attention of hip hop aficionados.

President Obama on the other hand has an easy manner and the "hip hop" in him is subtle. He knew that he needed to “deracialize” his campaign in order to win. Yet, he gives cues and clues to black america that “winks” at the community and the hip hop generation as if to see “i am down, and you know that i am down, I just can’t say it right now.” He has won an election and now has an enormously wide berth with the hip hop generation and the black community in general to do what he has promised to do. Of course, authenticity mandates that he carry through with his promises, of which portions of the stimulus package and new legislation seems to try to do.

I am not sure that the author of “Blacks, whites hear Obama Differently” got it exactly right. It is not just blacks that “hear” Obama. And not ALL whites hear Obama differently. It is the hip hop generation that hears Obama, together with the black community, including the civil rights generation (per Obama’s references to Langston Hughes, MLK and Malcolm X). The hip hop generation, includes whites, latinos, American Indians, Asian Americans, and so on – those folks that are profoundly influenced by the lyrics and culture of hip hop. President Obama has tapped into a very powerful force of support and loyalty. Michael Steele simply cannot. The authenticity is missing.

Wednesday, March 25, 2009

Eminem's Former Production Company Loses Lawsuit Over Digital Royalties

The former production company for Eminem recently lost a jury verdict in United States District Court for the Central District of California over claims that it was owed $1.47 million in additional royalties for the sale of the artist’s music via iTunes and ringtone purchases.

In F.B.T. Productions, LLC v. Aftermath Records, et al., (view the plaintiff's memo in support of motion for summary judgment) the issue concerned a pair of royalty provisions contained in a 1998 agreement between the two parties under which F.B.T. would furnish Eminem’s recordings to Aftermath, the record label founded by Dr. Dre. The first royalty provision promised F.B.T. between 12- 20% for “full-price records sold in the United States”, while the second provision required Aftermath to pay a royalty of 50% on proceeds emanating from “master recordings licensed to others for their manufacture and sale of records or for any other uses.” At issue was whether the first or second royalty provision was triggered by the sale of Eminem’s master recording rights to Apple iTunes and cellular telephone network carriers.

In the breach of contract suit, F.B.T. alleged that Aftermath had incorrectly relied upon the first royalty provision in determining the royalties due to F.B.T. for the use of Eminem’s master recordings for downloading purposes. F.B.T. claimed that Aftermath’s transfer of master recording rights to Apple iTunes and cellular carriers for downloading purposes clearly constituted a licensing agreement pursuant to the second royalty provision.

Conversely, Aftermath argued that the parties never intended for the term “license” to assume a strict copyright law definition; rather, they intended for the second royalty provision to apply to “ancillary uses” of the master recordings, such as the licensing of an Eminem song for use in a movie or for inclusion in a compilation album. According to the defendants, there is no difference between a digital album sale and a physical album under the royalty provisions.

Ultimately, the jury sided with the defendants in a case that could have opened the door for artists to claim increased royalties from the downloading of their recordings on iTunes or through cellular carriers. However, the jury did award F.B.T. $159,000 on a separate claim for misallocation of royalties by the defendants to F.B.T. and Eminem. Attorneys for F.B.T. say they will likely appeal on the breach of contract claim.

The verdict most significantly affects artists who are currently bound by royalty provisions drafted prior to the explosion in popularity of legal downloading earlier this decade. At a time when digital downloads account for 33 percent of all music purchases made in the U.S., these outdated agreements are preventing some artists from collecting royalties commensurate to their popularity among consumers.

- Brian Welch

(Photo by Andrew Medichini/Associated Press)