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50 Cent can’t sue over uncleared sample on publicity right grounds

By Chris Cooke | Published on Thursday 20 August 2020

The Second Circuit Appeals Court in the US has sided with Rick Ross in a five year old legal battle with 50 Cent, concluding that the latter rapper couldn’t sue the former for using an uncleared sample in a mixtape on publicity right grounds.

50 Cent and Ross have, of course, a very long-running feud. As part of that, in late 2015, 50 Cent sued over a mixtape Ross had put out earlier that year to promote his then new album ‘Black Market’. In that mixtape, called ‘#RenzelRemixes’, Ross had rapped over a snippet of 50 Cent’s 2003 hit ‘In Da Club’.

Of course promotional mixtapes are very common in hip hop and often feature uncleared tracks and samples in the mix. The music industry usually turns a blind eye to such things, because most of the rappers and labels who could sue have probably used mixtapes full of uncleared music to promote their own releases at some point in the past.

Nevertheless, ‘#RenzelRemixes’ did include an uncleared sample of ‘In Da Club’ meaning there were grounds for a copyright infringement claim. Had one been made, Ross would have screamed ‘fair use’ and first amendment free speech rights, and the court would have had to have a good old debate about whether or not either of those defences were credible.

But that didn’t happen because, although 50 Cent was pissed off his rival had sampled his hit without permission, 50 Cent didn’t own the copyright in that track. Universal’s Interscope imprints Shady Records and Aftermath did. And Universal didn’t seem all that keen to take action. Maybe – just maybe – because Ross’s mixtape was promoting an album released by, oh look, Universal’s Def Jam Records.

50 Cent therefore sued on the basis that his right to publicity had been infringed, specifically his publicity rights under the state laws of Connecticut, where he filed his lawsuit. Publicity or image rights are separate to copyright, and can be enforced under various state laws in the US.

In their response to the lawsuit, Ross’s lawyers questioned whether 50 Cent even have the publicity rights he was seeking to enforce, because he had in essence passed those rights on to Interscope via his record contract. But, even if he did have those publicity rights under state law, they shouldn’t interfere with the ‘In Da Club’ copyright which, of course, belongs to Interscope not 50 Cent.

At first instance a district court sided with Ross, but 50 Cent appealed. However, in its ruling yesterday, the Second Circuit Appeals Court basically upheld the original decision.

Though it did actually disagree with the claim that 50 Cent had given up his publicity rights – specifically in relation to the promotion of music – via his Interscope deal, because it’s thought that element of that deal actually ceased to be in effect in 2014.

However, on the second claim by the Ross camp, the Second Circuit was in agreement. Federal copyright law basically gazumps state rights to publicity, so while Interscope could have sued for copyright infringement over the uncleared sample, 50 Cent can’t sue to enforce his publicity rights.

Which means, if 50 Cent has a beef over the mixtape, he should take it up with Interscope. Wrote the Second Circuit: “[50 Cent] may have a right either to compel Shady/Aftermath to sue [Ross] for copyright infringement, seeking damages on which [50 Cent] might have been entitled to a royalty, or to seek damages from Shady/Aftermath for its failure to protect [his] right to royalties by suing [Ross]”.

But, “even if [50 Cent] possessed such rights against Shady/Aftermath, which in turn possessed rights it could have enforced against [Ross], [50 Cent] possessed no legal right to directly control [Ross]’s use of the song. His attempt to do so under the disguise of a right of publicity claim was in derogation of Shady/Aftermath’s exclusive right to enforce the copyright”.

The court added that Interscope and its Shady/Aftermath imprints may well have decided not to sue because they reckoned being featured in the Rick Ross mixtape was good promo that would increase the value of their recording. And maybe that’s true. Or maybe it was the whole “another Universal label was releasing the Rick Ross album” thing.

Either way, 50 Cent’s publicity rights were not infringed by the mixtape. Which is just as well, because if this case had gone the other way, it would arguably have set a precedent where people licensing samples would have to consider the publicity rights of the artists as well as the intellectual property rights of the copyright owner. Which would have been a right old hassle.