“Thought you were just another romeo/The shoe you pass by in the store, window/But soon as I got home I wish I’d bought you instead/I got it bad, I’ll take the black, take the navy & red/No other man has ever ever had quite this effect/I sleep alone cause there’s no room in my bed for any other lover/With no gun to my head/Your kisses hold me hostage and I don’t wanna stop it.
(Hook) Cause I only wanna give it to you/And I want you more than a new pair of shoes/I only wanna give it to you/And I sure do hope that you feel like I do . . .” – Metrolyrics.com
J-Cole (is) killing the charts right now, isn’t he? Folks if you are like me, when Elle Varner’s ‘I Only Wanna Give it to You’ song featuring J.Cole comes on the radio, you raise the volume. What a beautiful and authentically refreshing voice. However, we have a lawsuit on our hands. To some extent, it could be a good thing to break the emerging artist into the real world of music business. It will also permit her to make sure her team is a bit more cautious, even in the creative process.
AML American artists, this case is interesting and there are many things to keep in mind and reflect on from this case on AML’s court docket today. AML Nigerian, Ghanaian and other African artists and label executives reading this, thread softly. Many of you want to collaborate with American artists, sometimes “by force, by force,” as we say in Pidgin English slang in Nigeria. Many are willing to and have paid hundreds of thousands of dollars to make that a reality. However, there are many pitfalls you should be thinking of and legal issues you should be prepared to face.
African label owners looking for cross-overs, assume you have an artist like J-Cole who does a feature/collaboration with an American artist. Because you have not (dotted) your “i’s” and (crossed) your “t’s,” your label could be sued in US territory thereby forcing you to come to the USA to defend a lawsuit. Regardless of how wealthy you are, lawyers and lawsuits are expensive.
Have an entertainment attorney in place before you ink any deals with counterparts here in the USA. Bottom line, do your research or else expect to have legal drama fire burn through your pocket and pocket book when a lawsuit hits.
Let’s get to the present case shall we? AML American artists as the saying goes, “the mo’ money or appearance of money, then of course the mo’ problems.”
RCA a division of Sony Entertainment and Sony is faced with a lawsuit from artist Maya Hayuk.
We’ve seen a lawsuit like the one below with Rihanna’s S & M video shoot. I discussed the case here a while back.
Here is an excerpt from Hollywood Reporter
“A Brooklyn-based artist has filed a new lawsuit that raises the question of whether themise-en-scène from one video production can be appropriated in another.The plaintiff in the case is Maya Hayuk, who has had a strong career through two decades in the art world, with more than 75 gallery shows around the world. Her work has been published in books, magazines and websites. Hayuk also has licensed her art on apparel, consumer electronics and sports apparel.
She’s suing RCA Records and Sony Music over a music video entitled “I Only Wanna Give It To You,” by the up-and-coming singer Elle Varner.
Hayuk says that in 2010, she created an original work of art titled Sunshine.
The piece figured prominently in a music video, also titled “Sunshine,” by recording artist Rye Rye and recent Super Bowl halftime star, M.I.A. In the video, the two rap in front of Hayuk’s mural.
Now, Hayuk says that Varner’s own music video “includes numerous scenes that incorporate videographic reproductions of Hayuk’s Sunshine.”
Her lawsuit adds, “Hayuk’s original artwork is featured prominently in the Video and adds greatly to its mise-en-scéne.”
This isn’t the first lawsuit by an artist against a singer over a music video. Last year, photographer David LaChapelle sued Rihanna over “S&M,” and before the case was settled, a judge ruled that the “aesthetic appeal” of the music video could be seen by an ordinary observer as substantially similar to the way the photographer had composed his own work.
However, in this case, the artist isn’t claiming that the video is a copy, but ratherincorporates a copy.” – Hollywood Reporter.
AML LEGAL COMMENTARY
[P]laintiff Hayuk seeks an injunction and statutory damages. Both under the three different countries I primarily focus on here: Nigeria, Ghana and USA, the damages are parallel where a copyright infringement is alleged under the respective Federal Copyright acts of each nation.
Specific to the USA, the first thing is for the Plaintiff, as she does here, to seek to immediately stop the continued playing of the Music Video on television, internet or any other known and unknown medium worldwide. She is already on it. Is the court gonna buy it? We are seeing courts become a bit more reluctant to take these measures and buying into Defendant’s arguments on the extreme burden and hardship it would cost to do so. What this means is that parties just have to prepared to go to the negotiating table and really talk dollars and sense.
Second, with respect to “statutory damages,” the law mandates specific damages where infringement occurs. That amount can be no more than $150,000, per infringement, in the case of a willful infringement. The Plaintiff is asking for $150,000 statutory damages per infringement.
Third, US Copyright Law Protects “Work of Authorship.” The enunciated “works of authorship” include:
“Pictorial, graphic, and sculptural works. (i.e.) Photographs, posters, maps, paintings, drawings, graphic art, display ads, cartoon strips and cartoon characters, stuffed animals, statues, paintings, and works of fine art.”
Let’s delve into the damage (money) part a bit more.
What law Governs Copyright Damages/Accounting?
17 U.S.C. § 504 governs the recovery of damages and profits in a copyright infringement action.
What Does the Law Do?
If Plaintiff prevails in lawsuit, it allows the Plaintiff to recover either injunctive and/or compensatory damages. The easier part is obviously the injunctive relief. I already gave you all my leaning above on how Judges are behaving these days when it comes to injunctive relief. The challenging part is how do we determine what is owed Plaintiff, the compensatory part?
What Kinds of Compensatory Damage Can Plaintiff Receive?
Plaintiff can opt for Actual Damages and profits OR Statutory damages.
What is Actual Damages and Profits all about?
17 USC § 504(b) (the copyright law) says Plaintiff can get actual damages suffered as a result of the infringement AND any profits attributable to the infringement that were not taken into account when calculating actual damages.
Plaintiff must prove:
- Defendants gross revenue from the song was what Plaintiff says it is.
Defendants must prove:
- Their deductible expenses and any element of profit not attributed to the infringement. So, the defendants here will say, “yes the song made say $5million but we had so many expenses deducted that we only made $1million so you should get what the court determines is appropriate off $1million not $5million.”
It’ s a dual burden for the parties. When all is said and done, we should emerge with Defendant’s net profits which will then be paid to Plaintiff.
What about the Statutory Damages?
- § 504(c)(1) of the statute permits “statutory” damages. It means the law essentially gives a range of what you get. It’s prescribed, already. Here the facts tell us the Plaintiff is asking for the statutory prescribed $150,000.
- § 504(c)(2) of the statute says if a Defendant “willfully” infringed on the Plaintiff’s copyright, then Plaintiff can recover enhanced statutory damages.
Let’s see how the litigation pans out. It appears the Plaintiff here is more driven from an artistic and principled perspective, not necessarily money, given her extensive and successful background. I anticipate attorneys on both sides would get into settlement negotiations and dispose of this case fairly quickly; as there is really not much, in my view, to really fight over. I also think it might be in the Plaintiff’s best interest to do so.