Examples:

• • Jay-Z’s “Hard Knock Life” famously sampled Annie’s “It’s the Hard Knock Life” with permission, creating a legal derivative work.
  • Led Zeppelin was sued for copying “Taurus” in “Stairway to Heaven,” but the court found the similar elements were not copyrightable.
  • Vanilla Ice settled out of court with Queen & David Bowie for using “Under Pressure” in “Ice Ice Baby” without permission or credit.
  • 2 Live Crew’s parody of “Pretty Woman” was found to be fair use as it was transformative with a different purpose than the original.
  • Chuck D has criticized mixtape DJs for sampling Public Enemy’s music without compensating the original artists.

How It Applies:

• • The plaintiffs allege Cardi B violated their exclusive rights to reproduce, distribute, and make derivative works of “Greasy Frybread.”
  • If Cardi sampled any part of “Greasy Frybread” in her song without permission, it would likely be copyright infringement, not fair use.
  • Cardi may argue the material copied was not original enough to be copyrightable or her use was transformative fair use.
  • The plaintiffs will need to prove they own a valid copyright in “Greasy Frybread” and that Cardi copied protected elements of it.
  • Cardi’s use of the “Greasy Frybread” sample in a commercial work for her own financial gain would weigh against a fair use defense.

FAQs:

• • Is all music sampling illegal? Not if you get permission from the copyright owner or the use is deemed fair use, but unauthorized sampling is infringement.
  • Can you copyright a song title or short phrase? Generally no, short phrases are not considered original enough to be copyrightable by themselves.
  • What’s the difference between a sound recording copyright and a musical composition? The composition refers to the music and lyrics, while the recording is a particular recorded performance of that composition.
  • How long can copyright protection last for? For works created in 1978 or later, the copyright lasts for the author’s life plus 70 years. Older works may have different terms.
  • Can you copyright a beat or chord progression? Depends how original it is. Basic, common progressions aren’t copyrightable, but more complex, creative ones can be.

Why It Matters:

• • The timeline shows “Greasy Frybread” was written, recorded and released over 2 years before Cardi’s allegedly infringing song came out.
  • This supports the plaintiffs’ originality in their work and suggests Cardi had access to it and time to copy it before releasing her track.
  • The media attention and Spotify presence of “Greasy Frybread” bolsters the claim that Cardi & her team had reasonable access to hear and copy it.
  • Showing “Greasy Frybread” achieved some level of popularity is relevant to proving its value and calculating damages for infringement.
  • Filing the lawsuit within months of the alleged infringement avoids issues with statutes of limitations or laches defenses.

How It Applies:

• • Cardi will likely argue she never heard “Greasy Frybread” before writing “Enough (Miami)” and any similarities are coincidental.
  • The plaintiffs will use the release date and publicity around “Greasy Frybread” to show Cardi had ample opportunity to hear and copy it.
  • If the case goes to trial, the plaintiffs’ expert witnesses will testify about the access and similarities between the two songs.
  • Cardi’s attorneys will likely look for any evidence that the plaintiffs deliberately delayed suing to gain a tactical advantage, invoking the doctrine of laches.
  • The timeline of events and press around “Greasy Frybread” will be key evidence in evaluating Cardi’s access to it and the plaintiffs’ potential damages.

FAQs:

• • What is music copyright infringement? The unauthorized use of someone else’s musical composition or sound recording without permission or payment.
  • How common are music copyright infringement lawsuits? Very common, especially as music sampling has increased. Even major artists like Drake, Ariana Grande & Dua Lipa have been sued recently.
  • Do you have to prove the infringer made money from the copied song? No, you can infringe a copyright even if you don’t profit. But any illegal profits can be part of the damages.
  • What’s the average settlement for music copyright infringement? It varies widely but could be $100K to multi-millions depending on the songs’ success. Katy Perry’s “Dark Horse” case had a $2.8 million jury award, later overturned.
  • How long do you have to sue for copyright infringement? Generally 3 years from the infringement, but the timeline can be fuzzy if the copying isn’t initially discovered.

Legal Standards:

• • To prove direct infringement, the plaintiffs must show (1) they own a valid copyright and (2) Cardi copied protected elements of the original work.
  • A contributory infringer must have knowledge of the activity that infringes and induce, cause or materially contribute to it.
  • Vicarious infringement requires (1) the right and ability to supervise the infringing conduct and (2) a direct financial interest in it.
  • Unfair competition involves a false designation of origin or misleading description that’s likely to cause confusion among consumers.
  • Misappropriation happens when one party appropriates the labor, skill or money of another to gain a competitive advantage.

How It Applies:

• • Cardi & her collaborators directly infringed by copying parts of “Greasy Frybread” in her song without permission.
  • Atlantic & Warner had knowledge of the infringement by releasing & distributing Cardi’s song, materially contributing to her unlawful copying.
  • As Cardi’s record labels, Atlantic & Warner could supervise her conduct and directly profited from the infringing song’s success.
  • Cardi’s song unfairly competes with “Greasy Frybread” by misleading consumers about its true origin and harming the plaintiffs’ market.
  • The plaintiffs will argue Cardi misappropriated the artistic effort and skill they put into “Greasy Frybread” to gain an unfair advantage.

FAQs:

• • What distinguishes direct infringement from indirect infringement? Direct infringers violate a copyright owner’s exclusive rights themselves, while indirect infringers (contributory or vicarious) enable or profit from someone else’s infringement.
  • Can you sue someone for unfair competition under federal law? Yes, the Lanham Act allows federal lawsuits for false designations of origin, false descriptions and false advertising.
  • Is misappropriation a federal or state law claim? Misappropriation arises under state common law, as the Supreme Court recognized in the 1918 case INS v. AP.
  • Can Cardi be liable for infringement even if she didn’t know she was copying? Yes, copyright infringement is a “strict liability” offense – the infringer’s intent or knowledge doesn’t matter.
  • Could Cardi face criminal charges for copyright infringement too? Potentially, if the infringement was willful and for commercial gain. But most infringement cases are civil, not criminal.

How They Work:

• • Cardi will try to show she never encountered “Greasy Frybread” before writing her song, so any similarity is coincidental, not copying.
  • Copyright only protects original expression, not ideas or common musical elements. Cardi will argue any parts used were not unique enough to infringe.
  • Fair use considers (1) purpose and character of the use, (2) nature of the copyrighted work, (3) amount and substantiality of the portion used, and (4) effect on the potential market for or value of the original work.
  • Unclean hands bars a plaintiff’s claim if they acted unethically or illegally regarding the issue being litigated, but this defense is rarely successful in copyright cases.
  • Laches blocks a claim if the plaintiff unreasonably delayed suing and that delay harmed the defendant’s ability to mount a defense. It is an equitable defense applied at the court’s discretion.

How They Apply:

• • Expect Cardi to deny ever hearing “Greasy Frybread” despite its popularity, putting the burden on the plaintiffs to prove access.
  • Cardi’s musicologists will dissect the songs and opine that any similar elements are common building blocks not entitled to copyright.
  • Cardi may claim any use of “Greasy Frybread” was transformative fair use, not just copying, with a different meaning and purpose.
  • If the plaintiffs have made any misrepresentations or false claims, Cardi will argue the unclean hands doctrine bars their suit.
  • Filing the lawsuit within months of “Enough (Miami)” coming out weakens a laches defense.

FAQs:

• • What’s the most common defense to music copyright infringement? Lack of substantial similarity – arguing the songs just aren’t similar enough to constitute infringement.
  • Is not knowing you were infringing a valid defense? No. Copyright infringement doesn’t require intent or knowledge. Even accidental or “subconscious” copying can infringe.
  • How hard is it to prove fair use in music cases? Very difficult. Courts have set a high bar for fair use in music, and commercial uses rarely qualify.
  • Does unclean hands apply in copyright cases? Yes, if a plaintiff has engaged in any inequitable behavior regarding the copyright at issue.
  • Can laches block a copyright claim even if it’s brought within the statute of limitations? Yes. Laches is distinct from the statute of limitations and can apply even if claims are timely.

How They Work:

• • TROs provide emergency relief to immediately stop irreparable harm while the court can schedule a more in-depth preliminary injunction hearing.
  • Preliminary injunctions pause the alleged infringement during the case, while permanent injunctions prohibit it forever if the plaintiff wins.
  • Copyright allows recovery of actual damages (losses to the plaintiff) and the infringer’s profits. Statutory damages up to $150K per work may apply.
  • The court can order infringing materials seized and destroyed to prevent further infringement and make the plaintiff whole.
  • If a copyright plaintiff wins, the court has discretion to order the losing party to pay their reasonable attorneys’ fees and litigation costs.

How They Apply:

• • The plaintiffs will need to show a likelihood of success and irreparable harm to get a TRO halting Cardi’s song while the case is pending.
  • They’ll also push for preliminary and permanent injunctions barring Cardi from ever using their song again if they prevail.
  • The plaintiffs will seek Cardi’s actual profits from “Enough (Miami)” and her other revenues, as their actual damages will be hard to quantify.
  • They want the court to order all copies of Cardi’s infringing song pulled from the market and destroyed so it can’t keep harming them.
  • If the plaintiffs win, they’ll demand Cardi pay their substantial legal fees for having to bring this complex copyright case.

FAQs:

• • What’s the difference between a TRO and a preliminary injunction? A TRO can be issued immediately, without notice to the defendant, and lasts only until a preliminary injunction hearing can be held. A preliminary injunction comes after both sides argue and lasts until the case ends.
  • How much money can you get for copyright infringement? Actual damages, the infringer’s profits, or statutory damages up to $150,000 per work for willful infringement. Famous cases have yielded multi-million dollar judgments.
  • Does the court have to award attorneys’ fees to the winner? No, fee awards are discretionary, not mandatory. Courts often award them if the infringement was willful or the defenses were weak.
  • What happens to infringing materials that are impounded? They’re typically held by the court or a neutral third party until the case is resolved, then either destroyed or returned to the defendant if no infringement is found.
  • Can you get punitive damages for copyright infringement? No, copyright law does not allow punitive damages, only actual damages, profits and statutory damages.

Questions: Copyright Infringement Basics

• • 1. What types of works are protected by copyright?
    • A) Literary works
    • B) Musical works
    • C) Dramatic works
    • D) All of the above
  • 2. Which of the following is NOT an exclusive right of copyright owners?
    • A) The right to perform the work publicly
    • B) The right to display the work publicly
    • C) The right to prevent others from selling the work
    • D) The right to prepare derivative works
  • 3. What is the duration of copyright protection for works created after 1977?
    • A) 50 years from creation
    • B) 70 years after the author’s death
    • C) 95 years from first publication
    • D) 120 years from creation
  • 4. Which of the following is a requirement for copyright infringement?
    • A) Copying of protected expression
    • B) Commercial use of the copied material
    • C) Intent to infringe
    • D) Registration of the copyright
  • 5. What is the test for determining if one work infringes the copyright in another?
    • A) Access + substantial similarity
    • B) Identical or virtually identical
    • C) Likelihood of confusion
    • D) Wholesale duplication

Answers: Copyright Infringement Basics

• • 1. D) Copyright protects a wide variety of original creative works, including literary, musical, dramatic, pictorial, graphic, sculptural, audiovisual and architectural works.
  • 2. C) Copyright does not give owners the right to prevent others from selling the work, only from making infringing copies, adaptations, public performances/displays, etc.
  • 3. B) For works created by individuals after 1977, copyright lasts for the life of the author plus 70 years. For works made for hire or anonymous/pseudonymous works, the term is 95 years from publication or 120 years from creation, whichever is shorter.
  • 4. A) Infringement requires copying of original, protected expression – commercial use, intent, and registration are not necessary.
  • 5. A) To infringe, the defendant must have had access to the original work and copied enough protected expression to be “substantially similar.”

Questions: Music Copyright & Infringement

• • 1. What is music sampling?
    • A) Recording a cover version of a song
    • B) Using a portion of an existing recording in a new song
    • C) Parodying the lyrics of a popular song
    • D) Posting an original song on social media
  • 2. Which of these songs was found to infringe another artist’s copyright?
    • A) “Blurred Lines” by Robin Thicke (Marvin Gaye estate lawsuit)
    • B) “Stay With Me” by Sam Smith (Tom Petty song credits)
    • C) “Uptown Funk” by Mark Ronson (Gap Band song credits)
    • D) All of the above
  • 3. Which of these is NOT one of the exclusive rights of music copyright owners?
    • A) The right to publicly perform the song
    • B) The right to make copies of the sheet music
    • C) The right to play the song on the radio for free
    • D) The right to create new songs based on the original
  • 4. What is the most common defense raised in music copyright cases?
    • A) Fair use
    • B) Lack of originality in the plaintiff’s work
    • C) No access to the infringed work
    • D) Plaintiff’s work is in the public domain
  • 5. When does a musical work enter the public domain?
    • A) Immediately upon creation
    • B) When the copyright owner dedicates it to the public
    • C) When the copyright term expires
    • D) B and C

Answers: Music Copyright & Infringement

• • 1. B) Music sampling involves borrowing a portion of an existing song recording and using it as an element in a new recording.
  • 2. D) All of these high-profile songs were involved in infringement disputes that resulted in songwriting credits or damages being awarded to the original artists.
  • 3. C) Playing a song on the radio is considered a public performance, but in the US radio stations don’t pay royalties to artists/labels for terrestrial radio plays, only to composers/publishers.
  • 4. A)Fair use is the most common defense asserted in music copyright infringement cases, arguing the use was transformative criticism, commentary, parody, etc.
  • 5. D) Works enter the public domain when their copyright term expires (currently life of author + 70 years) or if the owner dedicates them to the public.

Disclaimer

The legal information provided in this article discussing Cardi B’s copyright infringement lawsuit is for general informational purposes only. It is not intended as formal legal advice and does not establish an attorney-client relationship. Laws and court procedures may have changed since the article’s publication, and application of the information to specific cases will vary based on individual circumstances.

For a personalized case evaluation and legal guidance on your music copyright infringement matter, please consult an experienced intellectual property attorney licensed in your jurisdiction. Most reputable copyright lawyers offer free consultations to review your situation and discuss your rights and options.