Kanye West Faces A Copyright Infringement Lawsuit: Is “Fair Use” Fair?

Kanye West Faces A Copyright Infringement Lawsuit: Is “Fair Use” Fair?

Raenelle Manning is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

On May 3, 2022, Bishop David P. Moten, a Texas pastor, filed a copyright infringement lawsuit against rapper Kanye West for incorporating a sample recording of his religious sermon into one of his songs.

Moten sought damages from West and co-defendants, G.O.O.D Music, Def Jam Recordings and Universal Music Group. The allegedly infringing sample is used on “Come to Life”, a song featured on his 2021 album “Donda”. At the beginning of the song, Moten’s voice is heard saying “My soul cries out, ‘Hallelujah’ and I thank God for saving me”. The rest of the sampled sermon is featured in the background of the pre-chorus and chorus. Moten argues that “over the span of several years, defendants have demonstrated an alarming pattern and practice of willfully and egregiously sampling sound recording of others without consent or permission.”  

In 2019, West was also hit with a lawsuit for unauthorized use of a sound recording on his Grammy-nominated song, “Ultralight Beam.” The beginning of the song features the audio from a viral Instagram video which portrays a four-year-old girl praying. The child’s guardians sued for damages and a share of the record’s profits. In the same year, actor, Ronald Oslin Bobb-Semple, sued West for sampling a recording of his performance titled “The Spirit of Marcus Garvey” on West’s song “Freee (Ghost Town pt.2).” Bobb-Semple claimed that West “exploited the actual voice, words and performance without authorization.” Both suits were settled.

Sound recordings are subject to copyright protection under the US Copyright Act of 1976 (Title 17) (“Act”),  which also provides that the owner of a sound recording has exclusive rights to reproduce, prepare derivative works from and publicly distribute the work. To incorporate a sound recording into a new musical work, artists must obtain “clearance” or permission from the copyright holder. A grant of permission may accompany a written agreement to compensate the copyright holder through either a flat fee or  royalty payments. Using the sound recording without permission constitutes copyright infringement. The Act states that copyright owners are entitled to “damages and profits of the infringer that are attributable to the infringement.”

Fair Use

An artist who fails to acquire permission from the copyright owner can use the ‘fair use’ defence. Under section 107, fair use allows persons to use parts of a copyright protected work without permission for limited purposes. The court considers the following factors when determining fair use: (1) the purpose and character of the use, including whether such is for commercial or non-profit educational purposes; (2) the nature of the of the copyright protected work (the court may consider whether the copied material has been creatively transformed by adding instrumentation or melody); (3) the amount and substantiality of the portion used in relation to the copyright protected work as a whole (the smaller the portion of the material used, the better for this defence) and; (4) the effect of the use upon the potential market for or value of the copyrighted work (the court may consider whether the audiences of the new and original work differ enough to not cause financial harm to the original copyright owner).

The fair use defence is rarely used in music sampling cases. However, Toronto-born rapper Drake successfully used the fair use doctrine in a 2017 copyright infringement lawsuit regarding the use of thirty-five second recording of a spoken-word piece on his song “Pound Cake.” West has previously attempted to employ the fair use defence in the Bobb-Semple lawsuit  so he may similarly attempt to use the fair use defence for the current case. Moten seems to have anticipated the use of the defence.  He claimed that “Come to Life” incorporates a one minute and ten second sample recording of his sermon— an arguably substantial usage — a factor that likely weighs negatively under the third factor of fair use consideration.

The purpose of copyright legislation is to encourage creativity, but also to protect the rights of copyright holders. West and the record labels named in the lawsuit undoubtably have the resources to obtain compulsory sample clearance and compensate individual copyright holders. It is hence difficult to justify their continuous and deliberate failure to do either, especially when West’s creative projects are known to reap significant popularity and financial gain. For instance, prior to the album’s release, the “Donda” listening party’s ticket sales alone produced $12 million in revenue.  To allow West to succeed on a fair use defence and evade his obligation to compensate would be seemingly unjust to Moten, whose sound recording arguably contributed to the album.