Sampling Suit Is Filed over Fergie Hit

'This was his 15 minutes of fame and Fergie has stolen it,' says Rahming's attorney, Richard Wolfe of Wolfe & Goldstein in Miami. The suit asks U.S. District Judge Patricia A. Seitz to issue a temporary injunction, restraining 'defendant, her agents, employees, licensees and officers from exploiting the plaintiff's copyrights.' The complaint also seeks unspecified damages and legal fees.

The judge has the power to pull CDs off the shelves, but Wolfe hopes a settlement can be reached. Fergie has the motivation to settle because there is a wide disparity in jury awards in sampling-copyright lawsuits, he noted. 'Cases like this usually settle,' Wolfe says. When Wolfe spoke, Fergie hadn't filed a response and no hearing dates had been set.

Rahming, who still produces some music but also works as a skycap at Palm Beach International Airport, says that he wants everything that is due to him. The liner notes on The Dutchess CD credit Rahming for the 16-second frenetic intro of synthesizer, keyboard and guitar. 'They never spoke to me,' Rahming says. 'Yes they mentioned me but didn't give me any money. This was a big song. This was the biggest song on the album.' Wolfe adds: 'People bought the album for 'Fergalicious,' and the opening hook was his song.'

The Dutchess is Fergie's first solo album after a long stint with the successful hip-hop group Black Eyed Peas. Before that Fergie ' real name Stacey Ferguson ' was a child star in Kids Incorporated and fell on hard times as a young adult. Before joining the Peas, she kicked an addiction to crystal methamphetamine and now is considered one of the biggest stars in her genre. The Duchess has spent 72 weeks on the Billboard 200 chart, reaching a high of No. 2 and spawning a number of other hits including 'London Bridge' and 'Glamourous.' The CD has gone triple platinum, selling more than 3 million units in the United States.

Fergie's attorney, Matt Greenberg, who is of counsel at Greenberg Traurig in New York, could not be reached for comment before press time.

Afro Rican's 1995 album with the sampled song did well enough, selling about 250,000 copies, to garner the attention of Will.I.Am, the Black Eyed Peas member who produced The Dutchess. Rahming heard 'Fergalicious' for the first time about 1 1/2 years ago. 'I just thought it was a D.J. mixing it onto the song. I didn't think it was the original song,' he says. 'Once I found out it was the real song, believe me I found it quite shocking.'

When it comes to sampling, the law is not always clear, experts say. The genre often uses a collage of past music to create a backdrop, bass line or interlude. One of the best at this is the Beastie Boys, who were sued by jazz flutist James Newton for copyright infringement for the group's use of three notes of his 1978 song 'Choir' in their 1992 song 'Pass the Mic.' The U.S. Supreme Court in 2005 refused to consider the case after a lower court ruled the sample was insufficient to sustain a copyright-infringement lawsuit, says Miami entertainment lawyer Leslie Zigel, a solo practitioner and former in-house counsel with music giant BMG. Newton v. Diamond, 349 F.3d 591 (9th Cir. 2003).

The Beastie Boys got a license from ECM Records to sample the copyrighted sound recording and ' like Fergie ' credited Newton on the album. Newton said the trio should have gotten permission from him as a composer as well. Three notes may seem like a hard sell for copyright infringement, but Zigel says the result may have been different if it had been the well-known five-note thematic device from the movie Close Encounters of the Third Kind. So length doesn't always matter. Courts generally have ruled artists must get permission to sample a song and that usually involves some monetary compensation, Zigel says.

Any number of issues can come up in litigation involving sampled songs: the length of the sample and sales of the song with the borrowed component. If there are damages, what is a fair assessment for 16 seconds of a song that could have launched an album such as The Dutchess into the stratosphere?

'It's an area of law that there is no bright-line rule, and the amount of sampling and substantial similarity tends to be the tests,' says intellectual-property attorney Loren Donald Pearson with Fleit Kain Gibbons Gutman Bongini & Bianco in Aventura, FL.

'It's up to the jury to decide how important the sample is to the overall work,' Wolfe says. 'That's why it comes down to how important it is. If it's background material no one can really hear that's one thing, but here's the opening hook of the biggest song on the album.' Rahming adds: 'I want what I would have gotten if they came to me and said I really like your song, whatever those royalties would add up to.' But he also wants something more than just money. 'Some respect. I want my platinum plaque,' Rahming says.

'This was his 15 minutes of fame and Fergie has stolen it,' says Rahming's attorney, Richard Wolfe of Wolfe & Goldstein in Miami. The suit asks U.S. District Judge Patricia A. Seitz to issue a temporary injunction, restraining 'defendant, her agents, employees, licensees and officers from exploiting the plaintiff's copyrights.' The complaint also seeks unspecified damages and legal fees.

The judge has the power to pull CDs off the shelves, but Wolfe hopes a settlement can be reached. Fergie has the motivation to settle because there is a wide disparity in jury awards in sampling-copyright lawsuits, he noted. 'Cases like this usually settle,' Wolfe says. When Wolfe spoke, Fergie hadn't filed a response and no hearing dates had been set.

Rahming, who still produces some music but also works as a skycap at Palm Beach International Airport, says that he wants everything that is due to him. The liner notes on The Dutchess CD credit Rahming for the 16-second frenetic intro of synthesizer, keyboard and guitar. 'They never spoke to me,' Rahming says. 'Yes they mentioned me but didn't give me any money. This was a big song. This was the biggest song on the album.' Wolfe adds: 'People bought the album for 'Fergalicious,' and the opening hook was his song.'

The Dutchess is Fergie's first solo album after a long stint with the successful hip-hop group Black Eyed Peas. Before that Fergie ' real name Stacey Ferguson ' was a child star in Kids Incorporated and fell on hard times as a young adult. Before joining the Peas, she kicked an addiction to crystal methamphetamine and now is considered one of the biggest stars in her genre. The Duchess has spent 72 weeks on the Billboard 200 chart, reaching a high of No. 2 and spawning a number of other hits including 'London Bridge' and 'Glamourous.' The CD has gone triple platinum, selling more than 3 million units in the United States.

Fergie's attorney, Matt Greenberg, who is of counsel at Greenberg Traurig in New York, could not be reached for comment before press time.

Afro Rican's 1995 album with the sampled song did well enough, selling about 250,000 copies, to garner the attention of Will.I.Am, the Black Eyed Peas member who produced The Dutchess. Rahming heard 'Fergalicious' for the first time about 1 1/2 years ago. 'I just thought it was a D.J. mixing it onto the song. I didn't think it was the original song,' he says. 'Once I found out it was the real song, believe me I found it quite shocking.'

When it comes to sampling, the law is not always clear, experts say. The genre often uses a collage of past music to create a backdrop, bass line or interlude. One of the best at this is the Beastie Boys, who were sued by jazz flutist James Newton for copyright infringement for the group's use of three notes of his 1978 song 'Choir' in their 1992 song 'Pass the Mic.' The U.S. Supreme Court in 2005 refused to consider the case after a lower court ruled the sample was insufficient to sustain a copyright-infringement lawsuit, says Miami entertainment lawyer Leslie Zigel, a solo practitioner and former in-house counsel with music giant BMG. Newton v. Diamond , 349 F.3d 591 (9th Cir. 2003).

The Beastie Boys got a license from ECM Records to sample the copyrighted sound recording and ' like Fergie ' credited Newton on the album. Newton said the trio should have gotten permission from him as a composer as well. Three notes may seem like a hard sell for copyright infringement, but Zigel says the result may have been different if it had been the well-known five-note thematic device from the movie Close Encounters of the Third Kind. So length doesn't always matter. Courts generally have ruled artists must get permission to sample a song and that usually involves some monetary compensation, Zigel says.

Any number of issues can come up in litigation involving sampled songs: the length of the sample and sales of the song with the borrowed component. If there are damages, what is a fair assessment for 16 seconds of a song that could have launched an album such as The Dutchess into the stratosphere?

'It's an area of law that there is no bright-line rule, and the amount of sampling and substantial similarity tends to be the tests,' says intellectual-property attorney Loren Donald Pearson with Fleit Kain Gibbons Gutman Bongini & Bianco in Aventura, FL.

'It's up to the jury to decide how important the sample is to the overall work,' Wolfe says. 'That's why it comes down to how important it is. If it's background material no one can really hear that's one thing, but here's the opening hook of the biggest song on the album.' Rahming adds: 'I want what I would have gotten if they came to me and said I really like your song, whatever those royalties would add up to.' But he also wants something more than just money. 'Some respect. I want my platinum plaque,' Rahming says.