LMFAO Can Continue Hustlin’ their Merchandise
A District Court Judge has ruled that Rapper Rick Ross cannot copyright the lyrics “everyday I’m hustlin’” without their musical component. This decision arose out of a case where Ross claimed that the band LMFAO’s 2010 song, “Party Rock Anthem,” was an illegal derivative work of his 2006 song “Hustlin’.” According to a lawsuit, “The use of Hustlin’ in “Party Rock Anthem” is readily apparent, despite the slight change from ‘everyday I’m hustlin’ … to ‘everyday I’m shufflin’…” Ross further alleged that the phrase is “performed in a manner to sound like” Ross’ own, and “is an obvious attempt to capitalize on the fame and success of Hustlin’.”[1] Ross also sued Kia Motors for using “Party Rock Anthem” in an advertising campaign.[2]
On the defendant’s motion for partial summary judgment, Judge Kathleen M. Williams determined that the phrase “everyday I’m hustlin’” divorced from all of the musical components of “Hustlin’” is not copyrightable.[3] According to 37 C.F.R. § 202.1(a), “words and short phrases” are not copyrightable. This is especially true when that short phrase is a combination of ordinary words.[4] The judge pointed to other cases where short phrases like “you got the right one, uh-huh,” “holla back,” “we get it poppin’,” and “caught up” failed to meet this threshold.[5] The judge also referenced that the terms “hustling” and “hustlin’” have been used in numerous songs prior to “Hustlin’” and that the exact phrase “everyday I’m hustlin’” has also been used in at least one song prior the Plaintiff’s 2006 release.[6] The judge also stated that even if the phrase “everyday I’m hustlin’” were copyrightable, the use of “everyday I’m shufflin’” on LMFAO’s merchandise would still be legal because the average lay observer would not confuse the phrase with the musical composition of “Hustlin’.”[7]
Many people are comparing this decision with Taylor Swift’s ability to trademark parts of her song lyrics. This misses the fundamental differences between copyright and trademark law. My colleague, Joey Gerber, addressed this topic in connection to Taylor Swift’s trademark in more depth in his post earlier this year.[8] Federal copyright law prevents others from reproducing, adapting, distributing, performing, or displaying a creative work while federal trademark law prevents others from using a mark in commerce in a way that is likely to cause consumer confusion. Taylor Swift correctly trademarked some of her lyrics to use on specific types of merchandise. Rick Ross likely would have succeeded in his claim in this case if he had similarly registered his trademark. Instead, he brought the claim under the incorrect framework of copyright law. Perhaps he will have more success with his claim about the lyrics use in conjunction with musical components, which was correctly brought under copyright law.
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