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  • Writer's pictureAisha Playton

HIP-HOP'S UNIQUE COPYRIGHT CODE: A DEEP DIVE INTO HOW THE MEGA GENRE HAS FORGED ITS OWN ETHIC IN IP

Updated: Nov 11, 2023


When considering the vast landscape of the music industry, one genre stands out from the crowd for its captivating lyrics, infectious beats and, most notably in this context, its innovative approach to intellectual property law. Hip-hop's characteristic booming basslines, intricately woven wordplays, strong visual archetype and culturally cathartic positioning have evolved into more than just a musical genre; it is an anthropological phenomenon. Rap music has evolved into a global force that not only entertains billions of listeners but has transformed the functioning and trajectory of several industries –– one of which is the legal system. Let's dissect the history of hip-hop and how the evolution of the multi-billion dollar rap industry has not only reshaped the entertainment industry and overthrown the pop culture status quo but, most pertinently, redefined the boundaries of intellectual property law.


GETTING ACQUAINTED WITH THE HISTORY OF HIP-HOP


While boasting many stylistic similarities to musical genres such as reggaeton and dancehall, the origins of hip-hop itself were born from the burgeoning block party scene on the electric streets of New York City. More pointedly, if you were to time travel back to the 70s in search of hip-hop's origin story, you would find it at 1520 Sedgwick Avenue in The Bronx. Popular local disc jockey, DJ Kool Herc, would collaborate with MCs in the area who would entertain crowds of attendees between musical sets with jokes and fodder to keep the energy high. Over time, both MCs and DJs alike began evolving their performances. First off, experimental DJs began using turntables and vinyl records to invent what eventually became known as the beat-break. Beat breaks are a production technique where the percussion breaks of chart-topping jazz, funk, soul, disco or rock songs are isolated and extended to create anticipation and musical "boundaries" within a track. The introduction of the beat break inspired MCs to integrate their talents with the music itself. This evolution in their role on stage saw MCs actively performing in rhythmic prose over the DJ's innovatively mixed beats mid-set instead of merely performing between sets as was the status quo. The crowd went wild for this newfound style of MCing and later dubbed it rapping. Initially considered a regional fad promulgated by prominent club deejays like DJ Hollywood, hip-hop music began establishing its commercial legitimacy in the late 1970s with smash-hit songs from The Sugarhill Gang, Kurtis Blows and Blondie. The most notable of these musical releases was the iconic song entitled, Rapper's Delight released by The Sugarhill Gang in 1979. As the first authentically hip-hop song to find success on the charts, the record represents a watershed moment for rap music as it reinterpreted the disco sounds of Love De-Luxe to introduce the burgeoning sounds of hip-hop to the greater American audience.


The 80s saw hip-hop solidify the unique rhythmic tenets of the genre (the release of the Roland TR-808 programmable drum machine played an integral role in establishing the rolling heavy drum loops of the musical category) and continue its growth into mainstream popularity. In this era, hip-hop began to escape the confines of North America, spreading the expressive musical style to Europe and Africa. In 1985, or the 'Golden Era of Hip-Hop', the literary lyricism of traditional rap music popularised by industry stalwarts such as Eric B & Rakim took a much edgier and arguably more nefarious turn towards "gangsta rap". This new iteration of rap is where MCs like Ice T found fame by poetically detailing the tragedies of violence, loss, crime and poverty in the "projects" over hard, rolling beats.


Gangsta rap formed the foundation for hip-hop's manifesto and its cult following in the 90s, where rap transformed into a revolutionary tool for controversy and political activism. This era produced some of the most popular rap artists of all time, such as The Notorious B.I.G., Tupac Shakur, N.W.A., Nas, Dr. Dre, Wu-Tang Clan, Lil Kim, Snoop Dogg and Jay-Z who played integral roles in projecting niche hip-hop record labels such as Def Jam into mainstream notoriety.


The 2000s saw rap claim its spot as a legitimate heavyweight in the music industry, with artists such as Eminem, Lil Wayne and 50 Cent dominating the charts with more of a pared-down and commercially viable version of "gangsta rap". During this period, artists like Pharrell's The Neptunes, Outkast, Kanye West, Nicki Minaj and Drake also introduced their alternative and often "softer" iterations of rap into the zeitgeist. Today, hip-hop is a multifaceted genre of expression where artists of any age, race, creed or lingual fluency (pro-tip: check out the up-and-coming trilingual rapper, Saint Levant) can carve out their own lane to achieve lyrical acclaim.


UNRAVELING THE RICH TAPESTRY OF RAP MUSIC


At its core, hip-hop is a musical mosaic where innovation is mandatory, rhythmically recounted tales of tragedy, desire and opulent wealth are preferred, and collaboration between genres, artists and cultures is commonplace. The genre's tendency to create audio-visual collages of composition has undoubtedly been the most significant contributing factor to its meteoric success. However, its greatest strength has also laid bare the genre's inherent vulnerability to substantial legal challenges related to copyright infringement.


HIP HOP'S ENDURING LEGACY


Hip-hop's contributions to the art scene extend well past music and into dance, fashion and film. As a musical art form, hip-hop is unique from traditional musical genres. Its contributions to popular music are also severely underrated, with the genre introducing integral musical principles and techniques to today's pop music roster. A few familiar tenets are the poetic and chant-like style of spoken word vocals, the foundational rhythmic drum lines that often form the basis of most rap instrumentals, the advent of remixed tracks or featured songs, extended percussive breaks, record scratching, the unmistakable fog horn and the iconic needle drop.


However, hip-hop's most notable and distinctive contribution is undoubtedly the introduction of sampling to the production process. This practice has set rap apart from other genres and significantly broadened the scope for innovation in musical production. How is sampling central to the genre's development, you may ask? Well, decades ago, when hip-hop producers began masterfully reworking and splicing multiple snippets of pre-existing musical releases, news clips, and excerpts from films, TV shows or speeches into new songs, it created tracks with nuanced depth and a sound unlike anything else on the airwaves. Sampling breathes renewed life and meaning into iconic or oft-forgotten musical hits or culturally significant TV moments and introduces the powerful notion of nostalgia to the catchy rhythms and flows of the latest compositions. The most notable initial example of sampling in hip-hop would be Grandmaster Flash's 1981 hit The Adventures Of Grandmaster Flash And The Wheels Of Steel, which was solely composed of sampled instrumentals. While this approach to the creative practice is deeply rooted in hip-hop culture and has revolutionised how artists across genres create music today, it has also sparked numerous copyright disputes in the decades following its inception.


UNPACKING THE STICKY RELATIONSHIP BETWEEN SAMPLING & FAIR USE IN COPYRIGHT LAW


Central to this category of IP dispute is the doctrine of fair use (or fair dealings, should you find yourself outside of the US). This legal principle has played a vital role in hip-hop's ability to skirt liability in legal disputes and allowed the genre to create a unique copyright code that has played a pivotal role in hip-hop becoming the most influential genre of music today. Let's begin by defining the principle of fair use: a legal doctrine that provides a framework for the lawful limited use of copyrighted materials without the permission of its creator to make provision for the publication of criticism, commentary, parody, or creating transformative art. A core element of hip-hop's fight against copyright censorship is the argument that chief to hip-hop's most distinctive characteristics is, in fact, its innovative use of sampling. At the root of many a hip-hop artist's defence against claims of copyright infringement lies the argument that the use of musical samples in the genre falls squarely within the doctrine of fair use, as the artist intends to transform the original material into an entirely new work of art infused with the distinctive cultural and creative context synonymous with their artistic style and genre. Over the years, hip-hop, in particular, has forced a reevaluation of the application of copyright law in music since hip-hop as a genre, by its definition and historical trajectory, essentially demands that its artists build upon the works of others to craft their narratives. This tendency is illustrated solidly in the evolution of case law in this regard.


First on the roll when considering cases that have established key copyright principles in the music industry is the landmark 1991 judgement in Grand Upright Music, Ltd. v. Warner Bros. Records Inc. To briefly reference the facts of the dispute, prominent rapper Biz Markie sampled soft rock artist Gilbert O'Sullivan's song Alone Again (Naturally) on his studio album entitled, I Need A Haircut without obtaining any permission to do so. The judge vetted the facts of the case and found that Markie's particular use of the copyrighted material failed to meet the standard for fair use, particularly due to the sheer amount of evidence pointing towards the opposite intention, and therefore amounted to copyright infringement. This decision set a monumental precedent for future rap artists that demanded permissions are secured and credit be given to original creators when sampling their works and highlighted the significance of transformative use –– a concept that has since become crucial in intellectual property law. The judgement also served as a wake-up call for the hip-hop community, whose pioneers regularly engaged in the practice of sampling without a clear understanding of its legal implications. Following the legal defeat, industry leaders and label executives sat up and took note. Industry heavy-hitters began formulating protocols to avoid liability by ensuring proper permission (also known as clearance) is obtained before any records hit the airwaves. This kind of legal oversight bled into other musical genres and ultimately modernised the functioning of the entire music industry.


Another example in the case law concerning fair use in particular in music is Bridgeport Music, Inc. v. Dimension Films. In short, the dispute centred around a song released by rap collective N.W.A. entitled, 100 Miles and Runnin' that featured in a movie released by Dimension Films. The song included a manipulated two-second sample of Funkadelic's 1975 song, entitled Get Off Your Ass and Jam. Since the sample had been utilised without the permission of the original creator or copyright holder, and no remuneration had been paid to the artist's label, Bridgeport Music, the record company initiated legal proceedings against the film company for the unlawful cinematic republication of the soundtrack on the basis of copyright infringement. At a federal level, Bridgeport was unsuccessful in proving copyright infringement had occurred. However, upon appeal, the sample was found to violate the principles of copyright law. As such, the court a quo decision was overturned, on the basis that the appeals court considered the material in question as a "sound recording" and, as such, argued that the copyright holder held the exclusive right to duplicate such works, regardless of the length of the audio. The court, however, reiterated that its findings did not preclude the availability of additional avenues of defence, such as the doctrine of fair use, where the sample can be considered transformative rather than derivative. Therefore, in terms of the appeals court, digitally-sampled works are not protected under the de minimis doctrine. The court wrote, "Get a license or do not sample. We do not see this as stifling creativity in any significant way." This judgement shook the music industry to its core, as it effectively rendered the de minimis doctrine redundant in such cases. This case law is a prime example of rap's inherent transformative nature and gave rise to a direct shift in copyright philosophy.


SAMPLING AS A TOOL FOR CULTURAL COMMENTARY & PARODY IN HIP-HOP


Rap's innate penchant for social commentary and sharp wit has given rise to an intriguing new facet of fair use in copyright law that tackles the intersections of parody and cultural commentary in music. Described by many as poetry put to music, hip-hop has functioned as a form of societal critique throughout its history. As a genre, its artists often engage culturally relevant topics in the music to communicate social and political messages that connect with and empower its listeners. Legendary rap star Eminem is a great example of the kind of artist who expertly incorporated biting social commentary into his clever lyrical wordplay. In the case of F.B.T. Productions, LLC v. Aftermath Records (2009), Eminem's production company levelled the argument that they were entitled to a higher royalty rate for digital downloads of his music, arguing that music purchased online should not be considered as a traditional record sale but rather as licensing rights. His legal team cleverly utilised ambiguous contractual provisions and the concept of fair use and parody to motivate their argument, framing Eminem's music as a form of artistic expression akin to the satire often engaged by a political cartoonist. By presenting his music as a form of satire, Eminem challenged, albeit not entirely successfully, the conventional notions of copyright infringement and paved the way for artists to assert their creative rights more confidently and potentially more successfully in future. While Eminem was initially successful in this lawsuit, the judgment was vacated on appeal. This legal battle, however, had far-reaching implications for the music industry and sparked a broader conversation about the digital age's impact on licensing, royalties and copyright law.


GETTING INTO THE MIX WITH MIXTAPES


Hip-hop's inherently scrappy, DIY (Do-It-Yourself) culture has played a key role in reimagining many intellectual property norms in the entertainment space. As a staple in hip-hop culture, mixtapes were initially informal compilations of songs distributed without securing the necessary permissions and licensing rights from their copyright holders. Bonus tracks on mixtapes were often unreleased songs, remixes or freestyles. In the legal context, mixtapes represented a longstanding gaping hole in the law as these tracks were inevitably considered promotional tools rather than official musical releases that warranted full copyright protection. This unique perspective underscores the transformative influence that hip-hop's unconventional copyright has had in the law and the entertainment industry. Over time, artists from other genres, both established and emerging, have begun to release mixtapes to capitalise on its unprecedented marketing power to gain recognition and grow their fanbase.


RAP'S ROLE IN ROYALTIES REFORMS


As rap continued its ascension to mainstream acclaim, the need for reform in formal collaborative relations and licensing became unavoidable, functioning as an essential step in the sustenance of the genre's innovative roots. Unlike other genres of music where individual creativity is held paramount, hip-hop is inherently rooted in collaboration. Musical releases often feature multiple artists and producers contributing to a single track, resulting in royalties and creative control being managed through intricate licensing agreements that protect the interests of all parties involved. Hip-hop's head honchos have singlehandedly transformed the act of sampling from a prickly legal quagmire into a sophistically crafted art form. Today, sampling is regulated by a well-oiled machine of procedural checkboxes, where artists seek clearance for samples and negotiate licensing agreements as a routine step in the production process. The incorporation of intellectual property considerations into the production process has not only safeguarded creative freedom but also served as a much-needed pressure test for the practical applicability of intellectual property principles in the real world. Moreover, the popularisation of collaborative partnerships and licensing agreements uncovered lucrative new revenue streams for creators and copyright holders alike. The tension between rap music and tenets of copyright law has given rise to several modernising legal reforms and has contributed significantly to the evolution and sustainability of the entertainment industry.


BRANDING BEYOND THE BEATS: HIP HOP & TRADEMARK LAW


Have you seen the Jimmy Fallon interview, where female rap sensation Cardi B tells a lighthearted story detailing her struggle to pin down her desired social media handle? For those who aren't in the know, she starts by sharing that her sister shares a name with the renowned French cognac, Hennessey and that, as a result, people would jokingly call her Bacardi (her real name is Belcalis, for those wondering). Carrying on with the joke, she decided to make her Instagram handle @BacardiB. Curiously, her Instagram account was repeatedly flagged and deleted. She wrapped up her story by jokingly sharing her suspicion that the liquor giant who owns Bacardi may be behind the deletion of her IG account based on trade mark infringement.




We often forget that musicians are not solely artists but are brands unto themselves. The most successful example of a rap star with a diverse and powerful trade mark portfolio is Kanye "Ye" West. The intersection between hip-hop and trademark protection goes beyond mere clothing lines, endorsement deals and fan merchandise. Given the nature of rap artists –– their catchy one-liners and oft-bombastic and unforgettable brand personas, artists in this genre are particularly vulnerable to trademark infringement on multiple fronts. Savvy artists like Dr. Dre have sought trade mark protection for their stage names and signature phrases, constructing a legal framework to safeguard their unique brand identity. Legendary rap group the Beastie Boys were embroiled in a high stakes trade mark and copyright battle with Monster Energy Drinks, who unlawfully used snippets from five Beastie Boys tracks without obtaining the requisite permissions to do so. The hip-hop stars successfully sued the beverage giant for USD 1.7 million on the grounds of copyright infringement and brand dilution. Unfortunately, this trade mark strategy does not pan out for every public figure –– Cardi B attempted to trade mark one of her catchphrases, "OKURRR" which was ultimately refused by the USPTO. When this strategic use of IP rights is successful, it allows artists to protect their careers and capitalise on their popularity in perpetuity, essentially turning their likeness into a multimillion-dollar enterprise.


CLOSING THOUGHTS


From pioneering the concept of fair use in entertainment to redefining collaboration and entrepreneurship in music, hip-hop has left an indelible mark on the industry-wide approach to copyright principles in the digital age. Rap music's enduring legacy in intellectual property law is a testament to the power of artistic expression and the boundless potential for transformation within the realm of creativity. Hip-hop's unlikely ascension to the Top of the Pop was unlikely when looking back on its early days of sampling controversies and risqué content. One would be forgiven for not foreseeing the establishment of the modern-day era of hip-hop that rakes in unthinkable amounts of revenue each year and has given way to mighty trade mark and copyright empires. Rap's insatiable penchant for consistently pushing boundaries and redefining ethical and legal standards has not only enriched the music industry but also provided valuable lessons for artists and legal scholars alike. As rap music continues its evolution, its unique copyright code remains a testament to the genre's indomitable spirit, proving that innovation and creativity can flourish within the confines of intellectual property law.

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