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Notorious BIG estate sues over uncleared sample claim

By | Published on Wednesday 2 April 2014

Notorious BIG

Ah, the good old “how many notes can be sampled before you infringe copyright?” debate, that’s always fun. Though in America the answer usually seems to be “not very many at all actually”.

The estate of the Notorious BIG has launched a pre-emptive lawsuit over allegations one of the late rapper’s tracks infringed the copyright in a 1970s song. It seems that the owner of the latter track has been making high demands, and most recently moved to halt the payout of royalties on the rap release pending litigation.

The case is interesting, because no one is denying that 1994 Biggie Smalls track ‘The What’ samples, without permission, the 1974 song ‘Can’t Say Enough About Mom’, which was co-written by soul singer Leroy Hutson and Michael Hawkins.

But the Notorious BIG estate reckons that only “two non-sequential tones” were taken from the original, and that they were modified for the new track. And such usage, the Biggie estate says, constitutes fair use under US copyright law, so no infringement took place.

Although originally put out by Curtis Mayfield’s music company, ownership of ‘Can’t Say Enough About Mom’ seemingly reverted to Hutson in 1989, and it is he who is threatening to go legal. Hutson first alleged infringement had occurred fourteen years after ‘The What’ was released, and out of court negotiations have seemingly being going on ever since.

Billboard says that during this time Hutson’s legal reps have demanded 50% ownership of the Notorius BIG track, including 50% of all income generated by it over the years. But legal experts hired by the estate say they are confident that, under American case law, the size and nature of the ‘Can’t Say’ sample means there is no case for infringement.

With the dispute now heading for court, the BIG estate clearly wanted to get in first, seeking court confirmation that no infringement occurred, and damages from Hutson for ‘copyright misuse’, based on the allegation he has been threatening legal action in the knowledge no actual infringement took place.

Though when it comes to sampling cases in the US jurisdiction there is rarely such certainty. It will be interesting to see what happens if this dispute does indeed reach a court room.