In copyright infringement action over use of phrase “party and bullshit” by rapper Notorious B.I.G. and singer Rita Ora, Second Circuit in summary order affirms district court’s finding that sampling from plaintiff’s spoken word poem constitutes fair use.
Plaintiff Abiodun Oyewole, a spoken-word poet, brought this copyright infringement lawsuit against Brooklyn-born rapper Christopher L. Wallace, better known as “The Notorious B.I.G.” or “Biggie Smalls,” for his hit song Party and Bullshit; against British singer and songwriter Rita Ora, who sampled Biggie’s track in her 2012 song How We Do (Party); and against various songwriters and producers involved in the creation of both musical works for their use of the line “party and bullshit.”
In 1968, Oyewole, a founding member of the spoken-word/rap group The Last Poets, created When the Revolution Comes. The song consists of drums and chants, and the lyrics warning of a coming revolution abounded with imagery of African American empowerment. At the end of the song, the line “party and bullshit” repeats, which Oyewole claims is meant to “challenge and encourage people to NOT waste time with ‘party and bullshit,’ but to move towards success.” After creating and publishing When the Revolution Comes, Oyewole registered copyrights in 1996 for a recording of the song and a book containing the lyrics.
In 1993, B.I.G. released the rap song Party and Bullshit, which sampled When the Revolution Comes, remixing the “party and bullshit” line to repeat throughout the chorus. Following B.I.G.’s death, his estate licensed the use of “party and bullshit” to Rita Ora for her 2012 single How We Do (Party).
In his 2016 suit, Oyewole alleged that B.I.G. and Rita Ora “publish[ed] and distribute[d]” the “crescendo, hook, text, lyrics and sound” of When the Revolution Comes through their use of the phrase “party and bullshit” without his authorization. While two defendants moved to dismiss for insufficient process and insufficient service of process, the B.I.G. and Rita Ora defendants moved to dismiss Oyewole’s lawsuit for failure to state a claim, principally arguing that the use of “party and bullshit” in Party and Bullshit and How We Do (Party) constituted fair use.
The district court granted defendants’ motion to dismiss, finding the use of “party and bullshit” to be fair use. On appeal, the Second Circuit in a summary order adopted the district court’s fair use analysis in all respects and affirmed the dismissal of Oyewole’s lawsuit for failure to state a claim for copyright infringement.
The district court assumed, for the sake of the motion, that Oyewole held an ownership interest in When the Revolution Comes, that “party and bullshit” was a copyrightable expression and that the works were substantially similar in determining whether the fair use doctrine applied to Party and Bullshit and How We Do (Party).
In concluding that the works constituted fair use, the district court weighed the four fair use factors: (1) the purpose and character of the use, (2) the nature of the copyrighted work. (3) the amount and substantiality of the portion used in relation to the copyrighted work and (4) the effect of the use on the potential market for the copyrighted work. Under the first factor, the court concluded that Party and Bullshit and How We Do (Party) sufficiently transformed the purpose of “party and bullshit” from something to be condemned or shunned “to something glorified,” and one embracing and enjoying the “party and bullshit” culture. The court also noted that Oyewole himself acknowledged that B.I.G. and Rita Ora used “party and bullshit” “in contravention” of its original purpose and therefore changed the meaning of the phrase.
The court found the second factor to be neutral—it weighed against fair use on the grounds that When the Revolution Comes is creative, but also favored B.I.G. and Rita Ora, because the spoken word poem is published. Weighing the third factor, the court held that “party and bullshit” was “not critically important” to the message of When the Revolution Comes.
Lastly, the fourth factor also favored the B.I.G. and Rita Ora defendants. In so holding, the court explained that the targeted audiences for the respective works were unlikely to be the same because the allegedly infringing works differed in character and purpose from Oyewole’s work. Even if the targeted audiences were the same, the court concluded, Party and Bullshit and How We Do (Party) were significantly different and could not substitute for When the Revolution Comes.
Although Oyewole advanced alternative arguments countering the finding of fair use, the three-judge panel declined to address them in the opinion, dismissing them as meritless.