Here’s a tip for copyright owners. Your infringement complaint is not a good place to make political distinctions between the purpose of your work and that of the defendant’s. See that buzz saw you are walking into? It’s called “fair use.”
That’s what happened to Abiodun Oyewole, founding member of The Last Poets (considered by some to be the first American hip-hop group). In 1968, Oyewole composed “When the Revolution Comes,” an infectious percussive poem predicting and urging a revolution against the cultural institutions of enslavement that would finally end the “Party and Bullshit.”
In 2016, Oyewole filed a copyright infringement suit against two other musicians. The defendants included the estate of rap artist The Notorious B.I.G., whose 1993 track “Party and Bullshit” was an apolitical ode to his “bad boy” lifestyle. The second defendant was British singer Rita Ora, whose 2012 hit “How do we (Party)” is a shallow pop anthem to unexamined hedonism. The three songs were not alleged to have had anything in common other than the use of the repeated hook: “Party and Bullshit.” A comparison of the way the phrases were used is below:
The Last Poets
|When the revolution comes, afros gone be trying to straighten their heads and straightened heads gone be tryin’ to wear afros. When the revolution comes. When the revolution comes. When the revolution comes. But until then you know and I know n*****s will party and bullshit and party and bullshit and party and bullshit and party and bullshit and party … Some might even die before the revolution comes.||I was a terror since the public school era; Bathroom passes, cuttin’ classes, squeezing asses; Smoking blunts was a daily routine; Since thirteen, a chubby n***a on the scene. Honeys want to chat; But all we wanna know is: Where the party at? And can I bring my gat? … Dumbing out, just me and my crew; Cause all we want to do is … Party and bullshit, and Party and bullshit, and Party and bullshit, and Party and bullshit . . .||Cause when the sun sets baby; On the avenue, I get that drunk sex feeling; Yeah, when I’m with you; So put your arms around me, baby; We’re tearing up the town; Cause that’s just how we do… I wanna party and bullshit And party and bullshit And party and bullshit And party, and party …|
Trying to prove infringement (and substantial similarity) from the copying of a mere three-word short phrase is already enough of an uphill battle from a copyright infringement perspective. But Oyewole made it steeper for himself by also including in his complaint some political criticism. Oyewole alleged that the defendants’ copying was “excessively egregious” because, whereas his song used the phrase ‘party and bullshit’ “with the sole purpose of challenging and encourag[ing] people to NOT party,” the defendants’ “intent was to use said lyrics in contravention of the original purpose.” If you are a copyright plaintiff looking to serve up to your opponents a fair use defense on a platinum platter, this is a pretty good way to do it, because the first factor in the fair use analysis examines whether the works in question have a similar “purpose.”
On March 7, 2018, in the case of Oyewole v. Ora, Judge Alison Nathan dismissed Oyewole’s claims. The Court assumed for the purposes of the motion that Oyewole had properly alleged substantially similarity, and then turned to fair use. Judge Nathan dutifully noted all four fair use factors, but the case turned on the first (“purpose and character”), which the Court noted is “the heart of the fair use inquiry.” Judge Nathan held that the works themselves self-evidently demonstrated that the defendants had “transformed” the phrase “party and bullshit.” Oyewole considered “party and bullshit” as something to be shunned; the defendants considered it something to be glorified. Oyewole’s admission in the complaint that the defendants had used the phrase for a different “purpose” sealed the deal for Judge Nathan, and turned what may have been a genuine dispute into a 12(b)(6) dismissal.