If You Like It You Should Put a Copyright on It
Picture this: Beyoncé on top of a police car in a flooded street. A newspaper with the headline, “The Truth.” An image featuring Martin Luther King. A young hooded black boy dancing in front of a line of SWAT officers. A graffitied wall with the words, “stop shooting us.”
Those were the images that awaited the public in the music video Formation (Dirty), released 24 hours before Beyoncé’s 2016 Superbowl halftime show. This video immediately sparked conversation and controversy because of the messages about culture and police brutality. But, keep your hot sauce in your bag, because the controversy didn’t stop there. It got hotter.
In the Formation video and select subsequent live performances Beyoncé used spoken word samples from Anthony Barre, a New Orleans comedian and artist known as Messy Mya. While Barre passed away in 2010, his estate, upon learning that his voice was used in the video, filed a copyright infringement lawsuit against the artist and scores of others who were involved with the song and video.
Barre is well-known for his catchphrases. The video begins with his recognizable, raspy voice, saying “What happed at the New Orleans,” and “Bitch, I’m back by popular demand.” These phrases, as well as the others used in the video, came from Barre’s shows, “A 27 Piece Huh?” and “Booking the Hoes from New Wildings.” Now, his estate wants royalties, damages, and credit given to Barre as a writer, composer, producer and artist on the track.
Beyoncé Beautiful Nightmare
Beyoncé’s lawyer claims that Barre’s estate has “grossly overstated” the use of his spoken word in the video and subsequent live performances. Barre is not part of the recorded track, and Beyoncé did not use his voice in her Superbowl performance. However, Barre’s voice can be heard on the video, for approximately 10-seconds, and was used for approximately 6-seconds during live performances throughout Beyoncé’s “Formation World Tour.”
Additionally, Beyoncé’s lawyers are arguing that this minimal use falls within the fair-use doctrine. Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyrighted protected works in certain circumstances. Examples of fair use include criticism, comment, news, reporting, teaching, scholarship, and research.
Beyoncé’s lawyer also claims that the fair-use doctrine is not needed because the music video producer licensed the videos from the Barre family before Barre’s sister was appointed as administrator of the Anthony Barre estate.
The legal team defending Beyoncé has asked to have all defendants not involved with the music video or live performances removed from the case.
U.S. District Judge Nannette Jolivette Brown, a federal judge for the Eastern District of Louisiana, denied Beyoncé’s Motion to Dismiss the case. This does not mean that Beyoncé and the many other defendants are in a box to the left. Judge Brown disagrees with the argument that the fair-use doctrine does not apply to digital and audio samples, and believes that in spite of the samples being short, they were still “qualitatively significant.” The federal judge also mentioned that attempting to dismiss a copyright claim like this one is “viewed with disfavor and is rarely granted.”
Beyoncé’s legal team also asked that, in the event Judge Brown denied the motion to dismiss, that she strike Barre’s request for statutory damages and attorney’s fees. This request was also denied because Beyoncé’s team did not properly demonstrate that Barre’s requests were “redundant, immaterial, impertinent, or scandalous matter.”
Now Let’s Get in Formation
Now, the case will move into a new phase, in which the judge will determine whether or not the use of Barre’s voice on the video and in performances falls under the fair use doctrine. To win the case Beyoncé’s legal team needs to get in formation and present a stronger argument for the artist, producers, and everyone listed as part of the lawsuit.
Have you ever been the victim of a copyright infringement?
Although you might not be as prominent as Beyoncé and Barre, when it comes to your creative property– you dream it, work hard, grind ‘til you own it— and U.S. copyright law prohibits theft of your creative property. Having your creative property stolen from you can disrupt your life and business and we can help. Contact Hutcherson Law to discuss your case.