In a recent ruling denying LMFAO’s bid for summary judgment, US District Judge Kathleen M. Williams held that the band’s use of the lyric “everyday I’m shufflin'” was not a parodic use of rapper Rick Ross’s lyric “every day I’m hustlin’”. Roberts et al. v. Gordy et al., Case No. 13-24700 (S.D. Fla. Sept. 15, 2015).
LMFAO’s single “Party Rock Anthem” was released in early 2011 and was the most successful song of their career. Kia Motors America Inc. is also listed as a defendant in the lawsuit, because of its use of the track in a popular television commercial featuring dancing hamsters. The electronic dance duo argued that the song’s use of the lyric “everyday I’m shufflin” was meant to be a “humorous parody of, and comment on, the drug dealing, daily hustle, and lifestyle of criminal activity described by Rick Ross in [Ross’s song] Hustlin’”, which features the line “everyday I’m hustlin'.”
The fair use doctrine creates a limited privilege for users of copyrighted works to use copyrighted material without the owner’s consent. In determining whether a particular unlicensed use is privileged as fair use, the courts consider four, non-exclusive factors: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion of the work used; and (4) the effect of the use on the potential market for or value of the work. 17 U.S.C § 107. Parody, which is a work that mocks or criticizes the original work through humor, is a form of commentary that typically is considered a favored type of use under the first fair use factor.
In Gordy, the court determined that the lyric “everyday I’m shufflin'” was not a parody of the Ross lyric because it does not subject the latter to criticism or ridicule, but rather, uses Ross’s lyric as a way to “avoid the drudgery in working up something fresh,” citing the Supreme Court’s canonical fair use ruling, Campbell v. Acuff-Rose, 510 U.S. 569 (1994). In Campbell, the Supreme Court distinguished between parody, which makes humorous use of a prior work for the purpose of commenting on that prior work, and satire, which makes use of a prior work to make fun of, or comment on, something other than the prior work. Id. at 580. Notably, the Court did not rule that parody is always fair use, nor that satire is never fair use, but rather held that parody typically has a stronger claim to fair use than satire when weighed along with the other fair use factors.
LMFAO further argued that, even if the use is not a parody, it is still protected under the fair use doctrine as a “transformative” use because it gives “new meaning and message to brand Party Rock Anthem as a song to which a specific dance—the Shuffle—is to be performed.” Judge Williams noted her skepticism of this argument but deferred the issue for trial. Likewise, she did not consider their remaining, additional defenses, including whether the copied portion of Ross’s song is original.
As for the remaining three factors, Judge Williams found that the second factor, nature of the copyrighted work, weighed in favor of Ross, as Hustlin’ is a creative, original work. With respect to the third factor, the court found that the lyric “everyday I’m hustlin’” is both qualitatively and quantitatively important to Ross’s work, as the line is the chorus, hook, and “heart” of Hustlin’, its most memorable feature, and comprises at least 40% of the total content in Ross’s song, appearing more than 30 times. Finally, the court found that questions of fact existed as to the fourth factor, regarding market harm, including whether the two songs served the same market, the differences between electronic dance music and hip-hop, and the reason behind the boon to sales of Hustlin’ since the release of Party Rock Anthem (i.e., whether this boon demonstrates cognizable market harm or proved that the two works served the same market).
The ruling emphasizes the significant uncertainty involved when relying upon the fair use privilege, including the difficulty predicting when a court will deem a humorous use parodic versus satiric. Such uncertainty often leads businesses to secure rights and permissions to use even a small amount of a copyrighted work, whether or not the use may seem humorous, as fair use is a fact-intensive defense that can only be determined after lengthy litigation.
Interestingly, this decision came right on the heels of another decision two days prior, in which Judge Williams ruled that the three-word phrase “everyday I’m shufflin’”, divorced from the accompanying music and appearing on t-shirts, was not original enough to be copyrightable. The ruling may seem to some as contradictory to Judge Williams’s finding on the second factor of her fair use analysis, which found the same phrase, accompanied by the melody, to be both qualitatively and quantitatively important to Ross’s work.