Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Oct 2, 2015

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LMFAO

A federal court judge in Florida has ruled that the musical duo LMFAO can’t invoke the “fair use” defense in a copyright case brought by rapper Rick Ross.

LMFAO sold 7.5 million copies of their hit song “Party Rock Anthem.” The chorus includes the phrase “everyday I’m shuffling” and the song also includes lines like “Yo, I’m runnin’ through these streets like Drano.”

The song was used in a commercial for Kia Motors starring giant dancing hamsters.

LMFAO’s members, Skyler and Stefan Gordy, admitted that their song was inspired by rapper Ross’s 2006 hit song “Hustlin,” which includes the phrase “every day I’m hustlin’.”

Ross sued LMFAO and Kia for copyright infringement in 2013.

LMFAO claimed that their “shuffling” phrase was protected as a “fair use” under copyright law.

Parody as “Fair Use”

According to the Stanford University Libraries,

A fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work.

(Emphasis added.)

However, determining whether copying is parody, satire, or just plain stealing can get complicated.

A “parody” makes fun of the original work, whereas a “satire” uses a work to make fun of something else. Courts often confuse the two concepts, and to favor parody over satire.

In the LMFAO case, the judge ruled that,

At best, Party Rock Anthem uses Hustlin’ in a humorous way, but in the absence of any directed criticism, comment, or ridicule, this (slight) element of humor is insufficient to support a parody defense.

She also suggested that LMFAO’s lyric was not “fresh”:

It appears that Party Rock Anthem merely uses Hustlin’ ‘to get attention’ or to ‘avoid the drudgery in working up something fresh,’ Defendants’ assertion of parody is an unconvincing post-hoc rationalization.

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Pretty Women

The quote is from the US Supreme Court case of Campbell v. Acuff-Rose Music, Inc.

The case involved two similar songs: “Pretty Woman” by the rap group 2 Live Crew and “Oh, Pretty Woman” by Roy Orbison.

The Supreme Court defined “parody” in that case to mean a work that uses

some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works. The key factor in assessing whether a derivative work is a parody is deciding if it is transformative, if it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message….”

T-Shirts

Ross also claimed that LMFAO violated his copyright by selling t-shirts bearing the words “Everyday I’m shufflin’.”

As reported by Reuters, the judge ruled that while the song as a whole was protected under copyright law, the three-word slogan could not be copyrighted, because it was a “short expression of the sort that courts have uniformly held uncopyrightable.”

The case is William L. Roberts, II et al. v. Stefan Kendal Gordy et al. Although the scope of the case has been limited by these rulings, it’s expected to go to trial in October.

(Photo Credit: “LMFAO Presented by Debit Mastercard” by Eva Rinaldi is licensed under CC BY-SA 2.0.)