The Right to Hip-Hop

Let’s journey through unpacking the surface of hip-hop culture, specifically the music, and the intersectionality of the evolution of copyright law. Respecting a creator’s rights to their work product is a newer aspect of creating, re-creating, and drawing inspiration to add substance to the growing culture that is hip-hop.

Attribution

Alina Vinchenko on Pexels

The rights of a creator to protect their intellectual property are foundational in our history, including the “IP Clause” of the United States Constitution in Article I, Section 8, Clause 8. The Copyright Act of 1970 enacted protections for copyrighted material. Copyright in hip-hop music, however, is a more recent evolution that began to gain prominence only about 75 years ago. Just as copyright continues to evolve in its reach to protect “original works of authorship as soon as an author fixes the work in a tangible form of expression,” so does hip-hop culture.

At the beginning of copyright’s formation, it included less than a handful of creative categories; today, it expands to paintings, photographs, books, movies, musical compositions, and more.

When recording a song, two works are produced and protected by copyright—a musical work and a sound recording. These works are governed by their respective rules, are often co-owned, and need to be licensed separately. Copyright grants the owner the right to create and sell copies, distribute those copies, make new works based on the original, and, with some limitations, publicly perform or display the work.

Hip-hop is a culture and a lifestyle that embodies and influences music, fashion, art, dance, language, politics, and much more. This culture is continuously growing, showing no signs of slowing down. The beauty of hip-hop is that its pioneers (including DJ Kool Herc, Grandmaster Flash, and the Furious Five) are witnessing what started in the Bronx blossom globally. But the downside of being a pioneer is that during the early days of this sound revolution, they were unable to capitalize on and protect their creations because copyright had not yet encompassed this form of intellectual property. Some argue that this allowed others to contribute to the emerging sound, while others contend that the inability to profit from their works left them at a disadvantage, hindering their opportunities to invest in their craft. Both perspectives present valuable arguments, but it is important to recognize and respect the profound evolution between hip-hop and copyright—the good, the bad, and the ugly. When considering hip-hop music, one should think of the ingredients of the sounds: the production, engineering, disc jockeying, and lyrics.

As a collective, the pioneers of hip-hop often lacked the funds to purchase equipment for producing new sounds. Instead, they innovatively used the sounds already in the market; this is called sampling. Just as hip-hop evolved, so did the technology. Samplers were employed to piece together breaks in songs, allowing producers to perform, rearrange sections, sequence arrangements, edit, and creatively mix music. Sampling served as a homage to the original creators while enabling this new generation to create trendsetting vibes. However, for the creators being sampled, homage does not pay the bills. Lawsuits for copyright infringement were not a concern that arose alongside hip-hop; those emerged later as the need to protect creative works became apparent, with sampling being the culprit.

In early hip-hop history, disputes modeling copyright infringement lawsuits—before copyright infringement was a true legal cause in the culture—were settled outside the courtrooms. It wasn’t until the 90s when copyright laws evolved, and the public began hearing about copyright infringement lawsuits associated with hip-hop music. Copyright laws began mandating the “clearing” of samples before full song production. One must obtain permission from the appropriate parties, such as the original creators or the copyright holders, to use their work, particularly for profit. This new business practice forced a shift in sound, as clearing samples incurs costs. Although there is no fixed amount for sampling fees because it varies on multiple factors, the expense was significant enough to alter the sound of hip-hop, forcing producers to rely more on their abilities to create original beats.

This new legal requirement to clear samples caused the pushing of boundaries of copyright law. Below are a few notable court cases and their outcomes:

In 1991, Grand Upright Music sued Biz Markie and his team for using an unlicensed composition on Biz Markie’s record, “Alone Again,” which included three words and a segment of the musical composition from “Alone Again (Naturally)” created by Gilbert O’Sullivan. The court ruled against the defendants because of their admission of acknowledging that they were violating the plaintiff’s rights by using the song without permission. Grand Upright Music Ltd. v. Warner Bros. Recs., 780 F. Supp. 182 (S.D.N.Y. 1991).

For eleven years, starting in 2007, Osama Ahmed Fahmy took various measures to sue Jay-Z and his team for using a sample of the song “Khosara”—composed by Baligh Hamdy—in Jay-Z’s song “Big Pimpin’,” claiming that the defendants were liable for copyright infringement as he held the Egyptian rights to create derivative works from musical arrangements utilizing the sample. The court decided in favor of Jay-Z and the other defendants because Fahmy transferred his right to prepare derivative works. Fahmy v. Jay-Z, 908 F.3d 383 (9th Cir. 2018).

In 2015, Marvin Gaye’s estate sued Robin Thicke, Pharrell Williams, and Clifford Harris (a.k.a. TI) and team for their hit song “Blurred Lines” claiming copyright infringement of Marvin Gaye’s song “Got to Give It Up.” During the trial, Thicke and Williams were found to have unlawfully copied portions of “Got to Give It Up.” On appeal, the majority upheld that Got to Give It Up was entitled to broad copyright protection because the musical composition is not confined to a narrow range of expression. But the dissent stated, “the majority [verdict at appeal] allows the Gayes to accomplish what no one has before: copyright a musical style,” continuing that it "strikes a devastating blow to future musicians and composers everywhere." Williams v. Gaye, No. 15-56880 (9th Cir. 2018).

Copyright laws will surpass our lives, and as long as people can listen, hip-hop will too. The goal remains to find the harmonious balance between the two, ensuring that creatives can continue to create and share the products that are birthed from hip-hop while remaining protected as their works are in the public domain.

Here’s a quick playlist of songs that use samples and the songs that were sampled. Jam out! (advisory warning: many of these songs contain language that may not be suitable for all audiences)

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