Fifth Circuit Rules in Battle Over Rap Phrase

As often happens in the hip-hop world, two rappers became embroiled in a dispute over who owned the rights to a song that utilized a popular phrase. And it took the musical ear of the U.S. Circuit Court of Appeals for the Fifth Circuit to settle the matter.

Positive Black Talk Inc v. Cash Money Records Inc., 03-30625, plunged the conservative appellate court into the world of booming bass lines and popular street slang. Chief Judge Carolyn Dineen King, who wrote the opinion, boiled the case down to a dispute between Louisiana rappers Juvenile and D.J. Jubilee over who owned the rights to a song “that included the poetic four-word phrase 'back that ass up.'”

In its Jan. 13 opinion, the Fifth Circuit set out the following facts: In 1997, both rappers recorded songs with similar titles ' D.J. Jubilee, also known as Jerome Temple, recorded “Back That Ass Up,” while Juvenile, also known as Terius Gray, recorded “Back That Azz Up.” Juvenile's song was a hit, sold more than 4 million CDs and grossed more than $40 million in sales. However, D.J. Jubilee's song failed to elevate either his bank account or his profile. D.J. Jubilee continues to work as a special education teacher.

In February 2002, D.J. Jubilee registered his song with the U.S. Copyright Office. On that same day, he filed a copyright infringement suit against Juvenile in U.S. District Court in Louisiana. After a trial in 2003 trial, a jury ruled in favor of defendant Juvenile, finding that D.J. Jubilee failed to prove that his version of “Back That Ass Up” was substantially similar to Jubilee's version of “Back That Azz Up.”

D.J. Jubilee appealed to the Fifth Circuit, arguing that many of the jury instructions were flawed, including instructions on substantial similarity, specifically when applied to the use of the phrase “back that ass up.”

Juvenile argued that the songs were substantially different and used different hooks; D.J. Jubilee's hook was the phrase “back that ass up” while Juvenile's was a sample from the Jackson Five's song “I Want You Back.” But D.J. Jubilee believed the jury should have been instructed to review specific portions of both songs, rather than both songs as a whole, according to the Fifth Circuit's opinion.

The appeals court affirmed the jury's verdict. The jury, as instructed, likely believed that the hook in Juvenile's song was not the phrase “back that ass up” but rather a sample from the Jackson Five's song, according to the appeals court.

“And that belief would explain why the jury determined that the songs are not substantially similar,” the court wrote. “Accordingly, we cannot say that the jury instruction, even if it had been erroneous, probably resulted in an incorrect verdict.”

Bruce Schewe, a partner in New Orleans' Phelps Dunbar who represented Juvenile, says: “It was entirely a lyric case. I was never able to get the plaintiff to concede that. The real question was whether the phrase was the hook in either song and was novel in either song.”

Nathan Gisclair, a partner in New Orleans' Montgomery Barnett Brown Read Hammond & Mintz who represented D.J. Jubilee, says the opinion gives little guidance on how plaintiffs should litigate cases such as this one in the future.

In its opinion, the Fifth Circuit noted that D.J. Jubilee had contended “that the district court committed reversible error by excluding, as hearsay, several newspaper articles that purported to find strong similarities between Juvenile's and Jubilee's songs.”

However, the U.S. Circuit Court of Appeals for the Fourth Circuit has ruled that such evidence is relevant in copyright cases, Gisclair says. “The people are the intended audience, and music critics are part of the intended audience. And you don't see that [discussion] anywhere in the Fifth Circuit opinion.”

Gisclair says he won't appeal the decision ' his client doesn't have the means to do so.

Even though Louisiana and Texas have produced numerous hip-hop stars, music copyright decisions such as Cash Money Records are rare for the Fifth Circuit, says David Schenck, an appellate partner in the Dallas law office of Jones Day. “They're expensive cases to litigate and often they settle,” Schenck notes.

Judges and juries usually come up with wildly divergent results when they're asked to answer substantial-similarity questions in music copyright cases, says Siva Vaidhyanathan, an assistant professor of culture and communication at New York University and author of the book “Copyrights and Copywrongs.” “Courts don't have a good formula for this,” Vaidhyanathan says of the Cash Money Records decision. Such cases force judges and juries to act as music critics and music historians to reach their decisions. And rap music is a battleground in these types of copyright disputes because the artists commonly take the current language of the street and turn it into songs ' songs that may be similar to another performers.”

Judge King, who admitted she's not very familiar with rap music, listened to both songs before issuing her opinion. “I'm interested in Brahms, but I did listen to [the rap songs].”

As often happens in the hip-hop world, two rappers became embroiled in a dispute over who owned the rights to a song that utilized a popular phrase. And it took the musical ear of the U.S. Circuit Court of Appeals for the Fifth Circuit to settle the matter.

Positive Black Talk Inc v. Cash Money Records Inc., 03-30625, plunged the conservative appellate court into the world of booming bass lines and popular street slang. Chief Judge Carolyn Dineen King, who wrote the opinion, boiled the case down to a dispute between Louisiana rappers Juvenile and D.J. Jubilee over who owned the rights to a song “that included the poetic four-word phrase 'back that ass up.'”

In its Jan. 13 opinion, the Fifth Circuit set out the following facts: In 1997, both rappers recorded songs with similar titles ' D.J. Jubilee, also known as Jerome Temple, recorded “Back That Ass Up,” while Juvenile, also known as Terius Gray, recorded “Back That Azz Up.” Juvenile's song was a hit, sold more than 4 million CDs and grossed more than $40 million in sales. However, D.J. Jubilee's song failed to elevate either his bank account or his profile. D.J. Jubilee continues to work as a special education teacher.

In February 2002, D.J. Jubilee registered his song with the U.S. Copyright Office. On that same day, he filed a copyright infringement suit against Juvenile in U.S. District Court in Louisiana. After a trial in 2003 trial, a jury ruled in favor of defendant Juvenile, finding that D.J. Jubilee failed to prove that his version of “Back That Ass Up” was substantially similar to Jubilee's version of “Back That Azz Up.”

D.J. Jubilee appealed to the Fifth Circuit, arguing that many of the jury instructions were flawed, including instructions on substantial similarity, specifically when applied to the use of the phrase “back that ass up.”

Juvenile argued that the songs were substantially different and used different hooks; D.J. Jubilee's hook was the phrase “back that ass up” while Juvenile's was a sample from the Jackson Five's song “I Want You Back.” But D.J. Jubilee believed the jury should have been instructed to review specific portions of both songs, rather than both songs as a whole, according to the Fifth Circuit's opinion.

The appeals court affirmed the jury's verdict. The jury, as instructed, likely believed that the hook in Juvenile's song was not the phrase “back that ass up” but rather a sample from the Jackson Five's song, according to the appeals court.

“And that belief would explain why the jury determined that the songs are not substantially similar,” the court wrote. “Accordingly, we cannot say that the jury instruction, even if it had been erroneous, probably resulted in an incorrect verdict.”

Bruce Schewe, a partner in New Orleans' Phelps Dunbar who represented Juvenile, says: “It was entirely a lyric case. I was never able to get the plaintiff to concede that. The real question was whether the phrase was the hook in either song and was novel in either song.”

Nathan Gisclair, a partner in New Orleans' Montgomery Barnett Brown Read Hammond & Mintz who represented D.J. Jubilee, says the opinion gives little guidance on how plaintiffs should litigate cases such as this one in the future.

In its opinion, the Fifth Circuit noted that D.J. Jubilee had contended “that the district court committed reversible error by excluding, as hearsay, several newspaper articles that purported to find strong similarities between Juvenile's and Jubilee's songs.”

However, the U.S. Circuit Court of Appeals for the Fourth Circuit has ruled that such evidence is relevant in copyright cases, Gisclair says. “The people are the intended audience, and music critics are part of the intended audience. And you don't see that [discussion] anywhere in the Fifth Circuit opinion.”

Gisclair says he won't appeal the decision ' his client doesn't have the means to do so.

Even though Louisiana and Texas have produced numerous hip-hop stars, music copyright decisions such as Cash Money Records are rare for the Fifth Circuit, says David Schenck, an appellate partner in the Dallas law office of Jones Day. “They're expensive cases to litigate and often they settle,” Schenck notes.

Judges and juries usually come up with wildly divergent results when they're asked to answer substantial-similarity questions in music copyright cases, says Siva Vaidhyanathan, an assistant professor of culture and communication at New York University and author of the book “Copyrights and Copywrongs.” “Courts don't have a good formula for this,” Vaidhyanathan says of the Cash Money Records decision. Such cases force judges and juries to act as music critics and music historians to reach their decisions. And rap music is a battleground in these types of copyright disputes because the artists commonly take the current language of the street and turn it into songs ' songs that may be similar to another performers.”

Judge King, who admitted she's not very familiar with rap music, listened to both songs before issuing her opinion. “I'm interested in Brahms, but I did listen to [the rap songs].”