From NYSBAR.com – Entertainment Law Blog (as originally posted here)
By Naomi Owolabi
Transformative art (often defensed under fair use), is the newest court-created exception to the use of copyrighted works. Transformation allows someone to use someone else’s work without authorization. The concept is based on the idea that if the ‘purpose and character’ is transformed by the use, then it can be fair.
Earlier this year, the Second Circuit affirmed that Rita Ora and Christopher Wallace (Biggie or The Notorious B.I.G) had transformed a 1960s poet’s phrase and as such, fairly used it.
“Party and Bull****” – a Lyrical History of Oyewole v Ora
Abiodun Oyewole (born Charles Davis) is a poet and founding member of the spoken word group the Last Poets, which grew out of the civil rights era. The last Poets was formed on May 19, 1968 (Malcom X’s Birthday) in Harlem, New York, and is credited for paving the way for modern hip hop culture.
Oyewole’s song “When the Revolution Comes” served to spread Pan-Africanist ideology. The final lines of the song repeats the lines “party and bull****” four times. The lyrics, according to Oyewole, served to “raise consciousness” of the impending revolution and encourage African Americans not to ‘party and bull***’. Oyewole claimed to have registered copyrights for a CD recording and book containing the lyrics of “When the Revolution Comes.”
Fast forward to the 1990s, Biggie released his song “Party and Bull****,” and used the refrain in a more informal sense. Notably, he performed the song at a concert with Tupac, and released a remixed version of the track. In 2012, British singer Rita Ora released her solo single “How we Do (Party),” which sampled Biggie’s “Party and Bull****” phrase, and used it over fifteen times, in a similar style to his. The song was originally planned to be titled identically to Biggie’s track, however for radio edit purposes, it was instead called “How We Do (Party).”
In 2016, in a complaint before the SDNY, Oyewole alleged that Rita Ora, The Notorious B.I.G (LLC), and others had infringed his copyright through unlicensed use of the phrase “party and bull****” in Biggie’s and Ora’s songs.
Sampling, Copyright Infringement and Transformative Use
Sampling is commonly defined as the use and reproduction of pre-existing musical material. In Grand Upright Music v Warner Bros, Biz Markie Productions Inc, the court held that sampling is copyright infringement unless licensed from the record company or through a transformative use of the recording. Ora sampled the “party and bull****” phrase from Biggie by obtaining a license.
Oyewole claimed that he gave neither Bigger nor Ora permission to use the words “party and bull****,” and that given the fact they intended to change the purpose of the original work, he would not have licensed the phrase. He claimed that they had “wrongfully appropriated and exploited the punch line, performance, lyrics [and] poem…” He argued that Biggie’s track samples “When the Revolution Comes” and remixes the “party and bull****” phrase without a license, and that Ora “borrow[s] the refrain, punchline, crescendo, and text hook.” He claimed copyright infringement and sought an injunction against the defendants from using the line. The Notorious B.I.G (LLC), Ora, and other defendants filed a motion to dismiss his claim.
Judge Nathan assumed that Oyewole had an ownership interest in his song and that the “party and bull****” phrase was protectible. As the defendants raised the fair use defense, in deciding whether the copyright was infringed, the court assessed the four factors under ยง107 Copyright Act 1976.
As part of the fair use analysis, the court examined whether the purpose of Biggie and Ora’s respective uses of “party and bull****” was transformative. Blanch v Koons tells us that transformative use is at “the heart of the fair use inquiry.” The Supreme Court in Campbell v Acuff-Rose Music held that “the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.”
Here, the court accepted that both Biggie and Ora changed the purpose of “party and bull****” in their songs, from one of radical condemnation to glorification. Judge Nathan, in reaching his decision, contextualized the lyrics in the respective songs. In “When the Revolution Comes,” the Last Poets are supposedly warning of an approaching violent revolution, criticizing those who “party and bull****.” Conversely, Biggie is embracing a lavish “party and bull****” lifestyle. His lyrics portray partying as a desired, celebrated activity. Similarly, Ora in “How We Do (Party)” is glorifying “party and bull****” in a lighthearted way, rather than condemning it. As such, the court held tat the songs were transformative.
The case was appealed to the Second Circuit, which affirmed Judge Nathan’s decision and granted a motion to dismiss.
What Precedent Does This Set for Poets and Artists?
SDNY decided that the use of Last Sitting, photograph of Marilyn Monroe, as part of a bejeweled 3-D statue, was transformative.
The fair use doctrine protects secondary works that “add value” to original pieces. Although Oyewole may not have anticipated that Biggie or Ora would have used his revolutionary piece in modern day Hip Hop and Pop music, the very transformation of his phrase encapsulates the progression from the 1960s civil rights era to modern day.
Handed down 20 years and 363 days after Biggie’s death, Oyewole v Ora has an important impact. The “party and bull****” hook used 1960s revolutionary poetry, 1990s Hip Hop, and 2010s British Pop, and highlights the importance of transformative use in music today.
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