Authored by Julie Langdon, September 25, 2015 at 12:46 pm

According to a current lawsuit, that means – are we selling drugs and making money or are we partying and dancing?  In 2013, William L. Roberts, a rap artist that goes by the stage name “Rick Ross” sued the members of the electronic dance music group LMFAO, and others, for copyright infringement.  The dispute centered on LMFAO’s very popular 2011 song “Party Rock Anthem.”   You surely have heard the accused infringing song – it was even featured in a KIA Motors America, Inc. commercial featuring giant dancing hamsters.  In fact, KIA is also a defendant in the lawsuit.  This case is set for trial in mid-October, so we will likely hear even more about this case in the coming weeks and months.      

According to the complaint (and subsequent amended complaints), Rick Ross alleges he is the copyright owner to the musical composition entitled “Hustlin’” and LMFAO members (and others) have infringed his rights by creating an unlicensed derivative work named “Party Rock Anthem” which includes the lyrics, music, and beat of Ross’ “Hustlin’.”  More specifically the “Party Rock Anthem” includes the hook “Everyday I’m shufflin’” which is performed in a manner which sounds like Ross’ hook “Everyday I’m hustlin’.”   

Last week, the Court issued two opinions relating to Motions for Summary Judgment filed by the Defendants.   Essentially, the Court determined that Rick Ross cannot copyright the phrase “every day I’m hustlin’” standing alone, and LMFAO cannot rely on a fair use defense based on a parody. 

In the first ruling, the Court granted Defendant’s Partial Motion for Summary Judgment on Count III of the Second Amended Complaint.  The Court, not unsurprisingly, determined that the short phrase “everyday I’m hustlin’” standing alone is not entitled to copyright protection because (1) word and short phrases are not copyrightable (37 C.F.R. § 202.1(a)), and Plaintiffs did not put forth any statutory authority suggesting otherwise (2) the Defendants presented abundant evidence that the phrase did not originate with the Plaintiffs, and the Plaintiffs did not dispute that evidence, and (3) the Plaintiffs failed the intrinsic test because a lay observer would not confuse products containing “everyday I’m shufflin’” with the Plaintiffs’ song.  The Court highlighted many similar instances where other Courts ruled similarly, and found phrases such as “holla back,” “fire in the hole,” “get it poppin,” “you got the right one” were not entitled to copyright protection when divorced from their musical composition.   Roberts v. Gordy, Case No. 13-24700-CIV-WILLIAMS (S.D.FL), Dkt # 331 (September 15, 2015).  Perhaps Rick Ross should have taken a page from Taylor Swift’s playbook and attempted to trademark “everyday I’m hustlin’.” 

In the second ruling, the Court denied Defendants’ Partial Motion for Summary Judgment on Counts I and II of the Second Amended Complaint based on a fair use defense.  The Court determined that, at least in the parody context, the Defendants cannot rely on a fair use defense.  The Court reasoned that the Party Rock Anthem does not qualify as parody because it does not criticize, comment on, or ridicule any aspect of “Hustlin’.” Rather, Party Rock Anthem is merely different from the original, and uses “Hustlin’”to garner attention and avoid the necessity of creating something new.  The Court also determined that questions of fact  exist as to whether Defendant’s use – outside the parody context – is transformative.  So, it is likely a fair use defense will come up again at trial.  On the other fair use factors, the Court reasoned that because “Hustlin’” is a creative, original work the second fair use factor weighed against the Defendants, and because the line “everyday I’m hustlin’” is qualitatively and quantitatively important to “Hustlin’” the third factor weighed against the Defendants.  The Court further reasoned that questions of fact existed relating to the fourth factor – market impact. Thus, it is likely we will hear more about this factor at trial too.   Roberts v. Gordy, Case No. 13-24700-CIV-WILLIAMS (S.D.FL), Dkt # 347 (September 17, 2015). 

It will be interesting to see how this case turns out – will the parties settle right before trial, or will the trial go forward?  With both parties “losing” at the summary judgment stage, this might be a good time to talk settlement if it makes sense.  However, neither of these decisions took away the heart of the lawsuit, and most of the dispute remains.  We’ll keep watching this one to see how it turns out. 


Rick Ross image courtesy of Photography by Eddy James Rissling for The Come Up Show available here.

LMFAO image courtesy of Lunchbox LP available here.