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As often happens in the hip-hop world, two rappers became embroiled in a dispute over who owned the rights to a song that utilized a popular phrase. And it took the musical ear of the 5th U.S. Circuit Court of Appeals to settle the matter. Positive Black Talk Inc., et al. v. Cash Money Records, et al. plunged the conservative appellate court into the world of booming bass lines and popular street slang. Chief Judge Carolyn Dineen King, who wrote the opinion, boiled the case down to a dispute between Louisiana rappers Juvenile and D.J. Jubilee over who owned the rights to a song “that included the poetic four-word phrase ‘back that ass up.’” In its Jan. 13 opinion, the 5th Circuit sets out the following facts: In 1997, both rappers recorded songs with similar titles — D.J. Jubilee, also known as Jerome Temple, recorded “Back That Ass Up,” while Juvenile, also known as Terius Gray, recorded “Back That Azz Up.” Juvenile’s song was a hit, sold more than 4 million CDs and grossed more than $40 million in sales. However, D.J. Jubilee’s song failed to elevate either his bank account or his profile. D.J. Jubilee continues to work as a special education teacher. On Feb. 15, 2002, D.J. Jubilee registered his song with the U.S. Copyright Office. On that same day, he filed a copyright infringement suit against Juvenile in U.S. District Court in Louisiana; Juvenile denied the copyright infringement allegation. To prevail, D.J. Jubilee had to prove that he had a copyrighted song and that Juvenile’s song was “substantially similar” to his. After a 2003 trial, a jury ruled in favor of defendant Juvenile, finding that D.J. Jubilee failed to prove that his version of “Back That Ass Up” was substantially similar to Jubilee’s version of “Back That Azz Up.” D.J. Jubilee appealed to the 5th Circuit, arguing that many of the jury instructions were flawed, including instructions on substantial similarity, specifically when applied to the use of the phrase “back that ass up.” Juvenile believed that the songs were substantially different and used different hooks; D.J. Jubilee’s hook was the phrase “back that ass up” while Juvenile’s was a sample from the Jackson 5′s song “I Want You Back.” But D.J. Jubilee believed the jury should have been instructed to review specific portions of both songs, rather than both songs as a whole, according to the 5th Circuit’s opinion. The appeals court disagreed with D.J. Jubilee’s arguments and affirmed the jury’s verdict. The jury, as instructed, likely believed that the hook in Juvenile’s song was not the phrase “back that ass up” but rather a sample from the Jackson 5′s song, according to the opinion. “And that belief would explain why the jury determined that the songs are not substantially similar,” wrote King in an opinion joined by Judges Jerry Smith and Emilio Garza. “Accordingly, we cannot say that the jury instruction, even if it had been erroneous, probably resulted in an incorrect verdict.” REP TO PROTECT Bruce Schewe, a partner in New Orleans’ Phelps Dunbar, says his client, Juvenile, is pleased with the decision. Juvenile viewed the copyright suit filed against him as a personal affront, Schewe says. “It was a claim of theft, and he was offended by that,” Schewe says. “It was entirely a lyric case. I was never able to get the plaintiff to concede that,” Schewe says. “The real question was whether the phrase was the hook in either song and was novel in either song.” Nathan Gisclair, a partner in New Orleans’ Montgomery Barnett Brown Read Hammond & Mintz who represents D.J. Jubilee, says the opinion is disappointing — it gives little guidance on how plaintiffs should litigate cases such as this one in the future. In its opinion, the 5th Circuit noted that D.J. Jubilee contended “that the district court committed reversible error by excluding, as hearsay, several newspaper articles that purported to find strong similarities between Juvenile’s and Jubilee’s songs.” The 5th Circuit ruled that they are hearsay, Gisclair says. However, the 4th U.S. Circuit Court of Appeals has ruled that such evidence is relevant in copyright cases, he says. “The people are the intended audience, and music critics are part of the intended audience,” Gisclair says. “And you don’t see that [discussion] anywhere in the 5th Circuit opinion.” Gisclair says he won’t appeal the decision — his client doesn’t have the means to do so. NO FORMULA Even though Louisiana and Texas have produced numerous hip-hop stars, music copyright decisions such as Cash Money Records are rare for the 5th Circuit, says David Schenck, an appellate partner in the Dallas office of Jones Day. “They’re expensive cases to litigate and often they settle,” Schenck says. “You don’t usually have people dodging and flexing all the way to a court of appeals decision.” Judges and juries usually come up with wildly divergent results when they’re asked to answer substantial-similarity questions in music copyright cases, says Siva Vaidhyanathan, an assistant professor of culture and communication at New York University. “Courts don’t have a good formula for this,” Vaidhyanathan says of the Cash Money Records decision. Such cases force judges and juries to act as music critics and music historians to reach their decisions. And rap music is a battleground in these types of copyright disputes because the artists commonly take the current language of the street and turn it into songs — songs that may be similar to another performer’s, he says. “Substantial-similarity cases become thorny,” says Vaidhyanathan, author of the book “Copyrights and Copywrongs.” “And you’re asking judges and juries to do readings of very complicated texts. They’re going to come up with wildly divergent results.” As a matter of fact, Judge King says she listened to both rap songs before issuing her opinion. “I don’t know that I had to,” says King, who admits she’s not very familiar with rap music. “I’m interested in Brahms, but I did listen to it.”

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