For a music born and bred in the streets, hip-hop is no stranger to the courtroom. Built on a bedrock of funk, jazz and soul samples, the genre has consistently pushed at the edges of legality and been shaped by litigation, from 1991’s Grand Upright Music vs. Warner Bros. Records, in which a district court ruled that Biz Markie had to pay for sampling Gilbert O’Sullivan’s “Alone Again (Naturally),” to 1994’s Campbell vs. Acuff-Rose Music, where the Supreme Court upheld 2 Live Crew’s fair-use rights to parody Roy Orbison’s “Oh, Pretty Woman.”
Once again, and perhaps unsurprisingly, the rule book on sampling and the boundaries of intellectual property are in the process of being redefined, this time thanks to a lawsuit filed in the United States District Court in Louisiana by Los Angeles–based Urband & Lazar Music Publishing. The suit names one of hip-hop’s biggest stars — and the undisputed king of the mixtape — Lil Wayne, as its defendant. At issue is an uncleared sample from a song called “Once,” written by a singer named Karma-Ann Swanepoel. Wayne’s version is called “I Feel Like Dying,” never “officially” released and never offered for sale to the public, but rather given away as a free download. The case not only questions the tenuous legality of mixtapes but also threatens to stymie their recent evolution from back-alley promotional tool to legitimate art form.
“This is the first case where a song that hasn’t been sold is the subject in a copyright-law case — and that’s very rare,” says Jack Lerner, a professor of intellectual-property, Internet- and technology-related law at USC’s Gould School of Law. “The big question is, how far can copyright holders go to stifle or silence someone who sampled a song and isn’t selling it, even if they are using it in performances?”
Four years ago, “I Feel Like Dying” wouldn’t have attracted a lawsuit. Most likely, an argument between songwriter and artist would have ensued, on the phone or in an office, and the sample would have been cleared, or “I Feel Like Dying” would have landed on the cutting-room floor as a great “lost” Lil Wayne track. Back then, mixtapes remained primarily a regional phenomenon, only available at hip-hop/DJ stores, Venice Beach and, of course, the genre’s mecca, New York’s bootlegger-bloated Canal Street. Early mixtapes usually served either as all-star compendiums from big-name DJs like Brucie B, Ron G and Kid Capri, or as slap-dash, unofficial efforts from artists promoting their albums to a small but dedicated fan base willing to shell out $5 to $10 for a hodgepodge of miscellaneous guest appearances, radio-station freestyles and unreleased singles aimed at building some word-of-mouth anticipation.
Some time in 2005, however, the landscape shifted. With the genre in a lull, piracy rampant, and major labels cautious about releasing new product, rappers began to realize the power of the Internet. While journalists gushed over the DIY freedom that the Web engendered for bands like Clap Your Hands Say Yeah, rappers began to join in, harnessing that freedom to circumvent their label drama and/or release product to a hungry audience just beginning to figure out its way around Rapidshare.
Lil Wayne instinctively understood this paradigm better than anyone. No one knows exactly how many songs Lil Wayne has recorded over the past four years. Not Wayne. Not Bryan “Baby” Williams, the CEO of Cash Money Records, not their lawyers. In 2007, Vibe magazine did a countdown of the 77 best Wayne songs of the year — and that was maybe half the material he had recorded in that 12-month span. Those are still available; with the click of a mouse, you can have your pick of, among others, Dedication, Vol. 1 and 2, Da Drought, Vol. 1-5, I Can’t Feel My Face, The Greatest Rapper Alive, Parts 1 and 2, and something called the Lil Weezyana Mixtape Vol. 1 (which I’ve never heard, mainly because I half-fear it to be a muddled civics lesson on the Pelican State, involving an entirely different kind of Louisiana purchase).
By June 2007, so many of these legally dubious tapes existed that when a DJ named Empire leaked Lil Wayne’s Tha Carter III sessions, the only clue that it wasn’t another of his mixtapes was a production roster that included unheard, six-figure-sound-quality tracks from Kanye West, Timbaland and Rockwilder. Suddenly spilled gratis to a piranha-like Internet audience, a nonplussed Wayne opted to re-record the album from scratch, a delay that ultimately dented the bottom line of Universal, which had been banking on a fourth-quarter release.
Among the leaked material was the aforementioned “I Feel Like Dying,” produced by an up-and-coming Miami beatmaker named Jim Jonsin, who would later create one of 2008’s most popular songs, “Lollipop.” A stoned, surrealist spell, “I Feel Like Dying” pairs a sample from Swanepoel’s “Once” with a Kublai Khan–like drug rap about playing “touch football on marijuana street” and being a “prisoner beyond Xanax bars.” Catching fire throughout the blogosphere and in magazines, “I Feel Like Dying” was named song of the month by Blender and finished at No. 7 in Spin’s ranking of 2007’s best songs, all despite never seeing commercial release.