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.
Exactly the problem, according to Zach Urband and Jonathan Lazar, the owners of the publishing rights to “Once” and the principals behind Urband & Lazar Music Publishing, the company suing Wayne.
“It starts with that typical music-business horror story of an artist working with the producer who promises them the moon and stars, who sells it to someone else and cuts the original artist out of the sale,” says Lazar. “It was an incredibly depressing song that Karma wrote in her bedroom while pouring her heart out. Hearing Wayne’s lyrics about codeine and Vicodin was the last way she expected to hear it.”
According to Urband and Lazar, Jonsin dangled the possibility of doing an album with Swanepoel in exchange for some of her demos, with “Once” as part of the collection. In a recent interview with the Orlando Weekly, Jonsin admitted that the song wasn’t yet intended to get to Wayne.
“The guy that works with me sent it out to Cash Money,” Jonsin told the Orlando Weekly. “He wasn’t supposed to do that. I was going to get [Karma] to play guitar over it and sing the chorus. [Wayne] loved it and went ahead and did it. It caused a lot of drama.”
Wayne intended this druggy dirge for Carter III but claims the song was stolen from him. Empire declared that it landed in his in-box from a guy on Wayne’s tour bus. While Wayne hasn’t publicly denounced Empire for leaking his album, his L.A.-based attorney, Ron Sweeney, says the case is a textbook example of greedy music publishers attempting to milk money out of a multiplatinum artist.
“Thanks to all the MySpace and YouTube views the song got, [Swanepoel] got a ton of exposure that she wouldn’t have otherwise had,” argues Sweeney. “Of course, her publishers would deserve something if Wayne was making money off the song, but he most certainly isn’t. And the people in the record business wonder why their industry’s in the toilet?” Sweeney says that Wayne received the track from the producer, Jonsin, who had signed an agreement confirming that he owned the rights. Says Sweeney, “It sounds like even the publishers have acknowledged the producer is the culprit.”
But Urband claims that “We’re not at liberty to go after [Jonsin]. Both us and our legal team feel that Wayne is at fault.” Of course, culpability is ultimately a judge’s matter to decide. However, the song’s popularity is clear: When the suit was filed, the song had received 16 million plays on MySpace. By contrast, “Got Money,” currently the most popular song on Wayne’s MySpace page, has had approximately 11 million plays.
Adding to the intrigue are Urband and Lazar’s claims that negotiations with Universal Records to place the track on Tha Carter III had begun, only to break down due to what the publishers called “an insultingly small amount” of money. When the two sides couldn’t agree on terms, the track was consigned to purgatory — until it landed on the Internet.
Dan Weissman, the manager of Washington, D.C.–based rapper Wale, whose Seinfeld-themed Mixtape About Nothing raised the bar for the genre upon its release earlier this year, thinks the case is more about a missed opportunity for Urband & Lazar. The company owned the rights to a song that saw a sudden and meteoric rise, but didn’t properly capitalize on it. Swanepoel’s “Once” was eventually released this May by Urband and Lazar’s label, U&L Records, but the window of opportunity had passed.
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“I don’t think the song itself did anything for Wayne’s career other than to add to his vast, uncleared mixtape catalog,” says Weissman. “On Da Draught 3,he used the Prince sample from ‘Diamonds and Pearls,’ and who knows how much it filtered down? But Prince didn’t sue — and he’s the most aggressive copyright enforcer there is. A girl like Karma, who most people hadn’t heard of prior, shouldn’t have freaked out but rather thanked her lucky stars that the most popular rapper in the world wanted to sample her.” Weissman adds that the publishers missed the chance to turn Swanepoel into a 2007 version of Dido, who jump-started her career on the back of Eminem’s “Stan.”
This isn’t the first time Wayne and Cash Money have been accused of running afoul of copyright law. Last year, a lawsuit was filed in the same Louisiana federal court by several music publishing companies alleging that songs from Birdman, Wayne and the Big Tymers featured unauthorized samples. And this past July, Abkco Music, publishers of the Rolling Stones’ “Play With Fire,” sued Wayne over his Carter III song “Playing With Fire,” which they allege features “an unauthorized release of an altered version of the song.”
USC’s Lerner finds the “I Feel Like Dying” case extraordinarily compelling for legal scholars because it touches on the idea of “fair use” and the imbalance between the United States’ notoriously strong copyright laws and new traditions that have cropped up in the 21st century with the advent of podcasts, MP3 blogs, mash-ups and mixtapes.
As it stands now, the power rests with copyright owners, says Lerner. “The mixtape tradition has and will carry on as long as the rights holders permit it, no matter how valuable it is to the culture or how much users, artists and the public rely on that tradition.” Whether that remains true depends on the outcomes of cases like Urband & Lazar’s.