By now, the storied beginnings of Hip Hop are well documented. Disc jockeys would spin back the instrumental portions of popular disco and funk records as the master of ceremonies (MC) would chant call and response phrases to the crowd. As the music grew, so did the rappers subject matter, vocabulary, and purpose. However, what remained is the act of taking a portion of a pre-recorded instrumental from another song for the musical “bed” (or base) for the MC’s poetry. In the early day’s, rappers would snip the drum patterns of James Brown songs or the latest disco records. Soon rappers would prefer jazz samples or sped up soul instrumentals.
Sometimes, rappers would hear beats that other rappers rhymed on and no doubt thought to themselves “I can do better than them”. As a result, mixtapes were born. Rappers would compile the hottest beats of the moment and rap over them. This was partly for promotional use and also for the sport of rapping and competition. Ice cube even took borrowing to new heights by taking several popular songs and rapping over them on one song called “Jackin’ for Beats”. Today, sampling and mixtapes are still a bedrock of Hip Hop. However, since the genre is now a multi-million dollar industry, landmark Copyright cases have set a legal precedent which rappers and producers must now adhere to. Otherwise, expensive lawsuits will cripple the artists, and the long-lasting effect would put a freeze on the music genre as a whole.
Last week, Bronx MC Remy Ma simultaneously utilized the age old art of battling and beat jacking for her vicious diss track “Shether”, aiming squarely at her foe, Nicki Minaj. The vicious track took the beat from Nas’ own Jay-Z take down diss-track entitled “Ether”. The song, widely considered one of the best diss songs ever, was accompanied by a dramatic pulsating beat crafted by producer Ron Browz. The song was originally released in 2001 on Nas’ album named Stillmatic, but not before the song went on its own mixtape run months before the album’s release.
There is no doubt that Remy Ma chose to rap over Nas’ beat based on the fact that it is a classic diss song in the ethos of Hip Hop. Remy’s beat jacking immediately worked and resonated with the music audience as “Shether” quickly shot up to #2 on the iTunes charts. The entire industry took notice, including the record company which originally distributed Nas’ “Ether”, Universal Records. Universal Music Publishing immediately took action and had it banned from the airwaves. Universal sent cease and desist letters to Soundcloud and radio stations across the country. Universal cited copyright laws within their reasoning, stating that Remy Ma nor her record company received permission to use the musical track. However, it should be noted that Remy has not released the track for purchase, only streaming. This may explain why the track is still available to listen to on iTunes.
Therefore, the question remains: what are the copyright laws behind utilizing songs attributed to other artists? The United States copyright law is contained in chapters 1 through 8 and 10 through 12 of title 17 of the United States Code. The Copyright Act of 1976, which provides the basic framework for the current copyright law, was enacted on October 19, 1976, as Pub. L. No. 94-553, 90 Stat. 2541. The copyrights law generally states that sample clearance is required only if the artist plans to make copies of their music and distribute the copies to the public. Therefore, for decades, rappers seemed to skate by without clearing samples on mixtapes because the mixtapes were released for free to the public and for promotional use only. This reasoning may fall short for Remy since radio stations have been blasting the track and Remy has been performing the track at live shows for profit.
One legal defense Remy may be able to argue is that she should have “fair use” of the track. Fair use is the right to copy a portion of a copyrighted work without permission because the use is for a limited purpose, such as for educational use in a classroom or to comment upon, criticize, or parody the work being sampled. Generally, when reviewing fair use questions, courts look for three things:
- Respondent did not take a substantial amount of the original work.
- Respondent transformed the material in some way.
- Respondent did not cause significant financial harm to the copyright owner.
However, this legal defense is likely to fail based on several factors. Remy unambiguously took the entire musical bed for “Ether”. She references the original track in the name of the song (“Shether”). Not only does she not transform the material in any significant way, she actually uses some of the words and rhyme patterns for the source material. Furthermore, she may harm the original owner of the copyright by profiting from performing the song.
Since the track disappeared from the airwaves, there has been a persistent rumor that Nas himself made sure that the track was pulled from the radio. Attention-grabbing article headlines aside, these rumors are unsubstantiated and most likely untrue. Nas has been proven to be a purveyor of Hip Hop culture and he respects all aspects of it, even beat jacking. Besides, Nas himself has taken the beat for Rakim’s “Paid in Full” to diss Jay-Z in the past on a track entitled “Stillmatic”. However, it should be noted that Universal Music Group is a parent company to Cash Money Records and Young Money Entertainment, the label that Nicki Minaj is signed to.
Whether the culprit is Nicki herself or, more likely a group of in-house high paid attorneys, the war of words still rages on between the two female MCs. Just a few days ago Nicki released a long-awaited answer track entitled “No Frauds” featuring Drake and Lil Wayne. The clap-back track shot to number one on the iTunes charts immediately and remains there at the time that this article was released. Considering Remy’s battle-ready mentality, the “beef” hungry audience can surely expect a follow-up track from her soon. However, this time Remy may want to either use an original beat or get her samples cleared beforehand.