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Friday, January 18, 2013

Why Mac Miller Owes Lord Finesse 10 Million Dollars

Posted by on Fri, Jan 18, 2013 at 1:14 PM

You may have read that Mac Miller and Lord Finesse settled in December over the dispute of Mac's use of Lord Finesse's work. You may have also read everything from ridiculous YouTube comment section reasoning to Mac Miller’s own lawyer's press release. You may feel like one is better than the other, or that the spirit of hiphop is being perverted somehow, but there is a logical explanation for this, which stands outside of your spurious reasoning. Rest at ease.

Lord Finesse isn't owed 10 million dollars by rap’s cutest start up because he's decided to betray the roots of hiphop. US Copyright Law is actually pretty easy to follow and available to digest in many forms over at this website. In addition to the usual FAQ section, they’ve also got pamphlets covering a series of specific subjects, and a series of cartoons for explaining things like copyright infringement to school children. There's also the entire law just sitting there for you to read. I grant you that the sections on sound recordings are incredibly dated, referring to transferring sound via phonograph doesn’t even sound civilized, but the principles of the law do still apply.

It's easiest to first begin with the popular Mac Miller fan defense (no, not the gormless, air-headed defense about the honor of hiphop) which is stated reasonably as:

Lord Finesse never paid Oscar Peterson for his sample of "Dream of You" used on his track "Hip 2 Da Game" either, tho.

This is the first and best argument, which attempts to establish Miller's innocence and show that Lord Finesse is a greedy ’90s monster back from the dead, participating outside the lines of hiphop historical allowances. This argument is, however, wrong.

Here’s why:

Under chapter 3 section 301 of the copyright law of the good ol’ US of A, Oscar Peterson does hold copyright for his work published in 1971 until the year 2067. This does not mean it is not okay for Lord Finesse to have sampled his work in the 1995 single "Hip 2 Da Game" (which appeared on the Awakening album in 1996). Finesse may have simply credited and been given permission by Oscar Peterson to use the sample, the latter of which I doubt. The more likely possibility falls under what’s called a "derivative work" clause (Chapter 1 Section 103), which is defined by the Copyright Office as "A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship." That means that for Lord Finesse to take an Oscar Peterson record (Reunion Blues, so good), put it on a turntable, sample three seconds worth of vibraphone from the first five seconds of the track, and loop it, creates an entirely different work than Oscar Peterson’s "Dream Of You," which is called a derivative. Derivative works are copyrighted by their owners like all copyrighted works at the point of creation, no little symbol necessary. You don’t even need to file paperwork to hold copyright over something you've created.

But isn't Mac Miller just doing what Lord Finesse did? Isn't this what hiphop is?

In short, no. Mac Miller used well over a few seconds of the Lord Finesse beat. As a matter of fact, if you listen to "Kool Aid n Frozen Pizza" and "Hip 2 Da Game" side by side, he used the whole goddamn thing. This is a problem because once Lord Finesse created that beat (literally at the moment he created it) he owned the copyright to it. Whether or not Mac Miller made money off the K.I.D.S. mixtape at the time of release is inconsequential. Whether or not Mac Miller indeed credited Lord Finesse with the use of the beat is also inconsequential (I'll get to why in a bit). He would've had to have had permission in writing ahead of time to do so, and since he didn’t "sample" the beat, as is hiphop custom, he set his own song outside of the derivative clause.

Furthermore, there are four factors determining whether a copyright is being infringed upon or simply being made "fair use" of. From my personal favorite, Section 107, you may be doing it wrong, and subject to infringement suit if you haven't considered:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

Yes, Mac Miller did use this tape, if not this song specifically to launch a commercial career, no he wasn’t teaching kids about Kool-Aid and frozen pizza.

(2) the nature of the copyrighted work;

Yes, the fact Mac Miller credited it to Lord Finesse when he laid it down showed that he knew it was copyrighted by him (the rest of us knew it too), so it wouldn’t have mattered if he had credited Finesse or not.

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

Holy wow. I can't even. He just went ahead and used the whole thing didn't he? That’s not a derivative work AT ALL!

(4) the effect of the use upon the potential market for or value of the copyrighted work.

This is the kicker, folks, this is the game right here. Either Lord Finesse or his lawyers (or both) are very smart and could smell that blood in the water. They saw that Mac Miller's (and now Dan Bull's, for that matter) use of Lord Finesse's copyrighted work did, in fact, effect the potential market value of Lord Finesse's work. If asked, who would you think made that beat? If you were to go out and purchase an album, would it be more likely that you would now seek out and find Mac Miller's work rather than Lord Finesse's fairly used, copyrighted work? Yes. Mac Miller has significantly affected the potential market value of Lord Finesse's work by using it in his song, to the potential tune of 10 million smithereens. End of story.

Dan Bull’s work is also being ripped from YouTube as fast as it’s being reposted in protest, for the same reason. Despite being a critique of Lord Finesse (which is a completely fair use) he’s rapping over the same beat! Folks, save yourselves some time and get to the source of the problem before you run your mouth.

I don’t care what you say Mac Miller's song is so much better than Lord Finesse's song anyway. You’re stupid you suck, TLDR, GFY, OMG.

Think about this: without Lord Finesse, it's likely that Mac Miller would've gone unrecognized at his tiny label, competing to be heard from Pittsburgh, and behind label mate Wiz Kalifah without a big "mature" sounding beat like that of "Hip 2 Da Game."

The spirit of hiphop is not to steal entire tracks, it's to sample beats with which to rap over, to go out into the community and make art, to dance. Members of the hiphop community are artists just like any other community, their work, whether derivative fair use or completely original, falls under protection of the US Copyright office, and people who infringe upon that work are subject to punishment. This is to protect you, and allow you some semblance of a chance to scratch out a life for yourself with your own creative endeavors. Hiphop is the folk music of a people, a people who know better than to let themselves be ripped off, be knowledgable, beware.

 

Comments (27) RSS

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27
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Posted by Sophie123 on November 18, 2013 at 8:57 PM · Report this
26
thats not even the big issue, legally you can wrap it so many ways whatever. the point is sooooo many artists do this same exact thing..... curren$y has like 6 mixtapes just rapping over old vintage beats. tons of artists do this. it is the most ridiculous thing because the only reason people would side with finesse is because no one likes mac miller. anyone else this would happen too would be just downright outrageous. this is on some fuck shit.
Posted by 1992 on February 9, 2013 at 10:43 PM · Report this
25
Mixtapes have written on them for promotinal use only. This is how artists, and record labels are able to get around copyright infringment. If a artists is in the studio, and records a song that they want to put on their album, but it turns out that the sample holder is asking for a large amount of money, which the record company doesn't want to pay. The artist, or record company can simply leak the record to a dj, and the record company and artist can simply claim the song was bootlegged. I believe someone said Miller recorded a video for the song, and it was put on youtube. This is why Finesse has a ground to sue. Miller is receiving revenue from Finesses work.
Posted by Magnus Robot Fighter on February 1, 2013 at 10:28 AM · Report this
24
THANK YOU. Finally it's said.
Posted by Nasa on January 29, 2013 at 2:51 PM · Report this
Sean Jewell 23
@21, @22, THANK YOU. You get it. Thanks for reading.
Posted by Sean Jewell http://https://twitter.com/cursedjewell on January 24, 2013 at 12:21 PM · Report this
22
Other artists may have not been sued (we've yet to see) because you never know maybe they have a good relationship with the person they took the beat from. Or maybe the person whose beat is being used doesn't care because they see it ethically wrong to take legal action because they too are down with hip-hop and believe in it themselves. However, its clear not everyone sees it that way. Let's not forge to that Mac made a video for the song. The video supposedly received millions of views and therefore it was receiving money by way of AD placements. Who gets a cut out of that? Mac Miller (or whoever in his camp/business that runs that) and youtube. Money was made. But before I forget it could just be maybe other artists gave the person a little side money lowkey just to cover themselves. Who knows?
Posted by ItsLuRocK on January 24, 2013 at 9:51 AM · Report this
21
I don't understand why people are trying to play blind and use the "essence of hip-hop" as an argument or as a justification. This is all true. That's the problem with "artists" who are trying to come into the game and grow a name or just fans in general who don't take the time to research it for themselves. Learn the business. Just because your favorite rapper has done it in the past doesn't mean you can. Yes, it's true that is the general nature of the mixtape game in the past to jump on a beat and make it your own so to speak. In fact, I remember visiting the bootleg man on numerous occasions back in the day to get the latest G-Unit mixtape when they were started that trend and were killin' it too. Desert storm mixtapes w/ clue all that shit. This case has potentially opened the door for your favorite artists and up and comers (who blow up off it) to face similar charges should the individual choose to sue. It's not in the "essence" of it all I understand that but these people out here want their money and you have to think if you were on the end you might do the same and want yours. It's good too though because it's going to separate the real artists from the wannabe's who can't create original dope original works. Bong bong son. lol
Posted by ItsLuRocK on January 24, 2013 at 9:43 AM · Report this
20
Sean, you have NO IDEA what you are talking about. Damages are not computed on a per-download basis. Please consult with a lawyer and revise the article accordingly.
Posted by Young Melon on January 24, 2013 at 9:39 AM · Report this
19
.......Why isn't every artist who ever released a mixtape sued, then?
Posted by Sirius, the Dogstar on January 24, 2013 at 9:26 AM · Report this
Sean Jewell 18
@13 @16 what I should've made more clear is that I (me, I) think that Mac owes Lord the whole 10 mil and it is a reasonable number based on the bare minimun $250 PER violation fee after 750,000 downloads on Dat Piff alone. He STOLD Lord's work and GAVE IT AWAY 750,000 times.
Also, copyrights don't have to be registered to be valid. Ever. At all. End of story.
Posted by Sean Jewell http://https://twitter.com/cursedjewell on January 24, 2013 at 9:25 AM · Report this
Sean Jewell 17
@12 LOL thanks a lot bro, now I'm in trouble with the editor of the internet.

@15 Good points, a lot of them. Dub plates are still used that way, btw. But that's the Caribbean, where at best you'd get copyright protection under French or Dutch law. This is America. Hip hop isn't going to die because Lord Finesse sued Mac Miller. If you're going to steal a beat, you sure shouldn't do it from a guys who song is called "Hip 2 Da Game". He's perfectly within his rights is all I'm saying. Whether or not it helps...well...
Posted by Sean Jewell http://https://twitter.com/cursedjewell on January 24, 2013 at 9:22 AM · Report this
16
Sorry, but where did anyone get the idea that things were settled for $10 million dollars? We have no idea how much was actually paid out.
Posted by buddy hack it on January 24, 2013 at 12:51 AM · Report this
15
"The spirit of hiphop is not to steal entire tracks, it's to sample beats with which to rap over"

...this is so wrong on so many levels. hip hop has always been a competitive art form and one of the many competitions in hip hop involves taking someone else's beat and rapping over it. now mac probably wasn't trying to compete with lord finesse, what he did has been done by so many rappers in so many cases before this trial existed.

one could argue weezy's huge success is due to his stealing of beats and rapping over them.
rap mixtapes have for a long time been about rapping over other artists beats to either compete, show one's knowledge of hip hop, or to make an artistic statement. even lupe fiasco was first noticed because of his recycling of beats on his farenheit 1/15 tapes.

think about where hip hop came from...dub plates in the caribbean were an enormous influence on the art form and THAT involved the "stealing" of instrumentals and laying new vocals over them. this recycling culture of riddims exists to this day.

hip hop artists have been stealing beats for as long as hip hop has been around. this case is scary because it takes away from what makes hip hop so appealing in the first place...the low entry cost. anybody can pick up a mic and start spitting over their favourite instrumentals. and now if you show ppl your rhymes and ppl like them and you establish a career off of your "stealing" of beats, you can get screwed over like this??? thats not what i want to see.

dont think about what this case means for the artists who have established themselves...think about the would-be hip hop legends who are limited by their access to engaging production. these are kids who we are screwing over. remember that.
More...
Posted by not a mac miller fan on January 23, 2013 at 11:31 PM · Report this
14
"The spirit of hiphop is not to steal entire tracks, it's to sample beats with which to rap over"

...this is so wrong on so many levels. hip hop has always been a competitive art form and one of the many competitions in hip hop involves taking someone else's beat and rapping over it. now mac probably wasn't trying to compete with lord finesse, what he did has been done by so many rappers in so many cases before this trial existed.

one could argue weezy's huge success is due to his stealing of beats and rapping over them.
rap mixtapes have for a long time been about rapping over other artists beats to either compete, show one's knowledge of hip hop, or to make an artistic statement. even lupe fiasco was first noticed because of his recycling of beats on his farenheit 1/15 tapes.

think about where hip hop came from...dub plates in the caribbean were an enormous influence on the art form and THAT involved the "stealing" of instrumentals and laying new vocals over them. this recycling culture of riddims exists to this day.

hip hop artists have been stealing beats for as long as hip hop has been around. this case is scary because it takes away from what makes hip hop so appealing in the first place...the low entry cost. anybody can pick up a mic and start spitting over their favourite instrumentals. and now if you show ppl your rhymes and ppl like them and you establish a career off of your "stealing" of beats, you can get screwed over like this??? thats not what i want to see.

dont think about what this case means for the artists who have established themselves...think about the would-be hip hop legends who are limited by their access to engaging production. these are kids who we are screwing over. remember that.
Posted by not a mac miller fan on January 23, 2013 at 11:28 PM · Report this
13
@ Sean Jewell you're wrong. Unless Lord Finesse is claiming statutory damages b/c its a registered copyright, the 10 million dollar number is extremely speculative. Highly speculative damage claims are regularly disregarded in a court of law. They settled the case so we don't know what, if anything, Mac Miller would have owed Lord Finesse.
Posted by ag80 on January 23, 2013 at 10:00 PM · Report this
12
There is a reason why people hire lawyers instead of just doing some Google searches. This article is the worst explanation of copyright law ever. I stopped reading at your explanation of derivative work. This should be pulled from the website pending editorial review.
Posted by Detroit Murder Dog on January 23, 2013 at 5:53 PM · Report this
11
This is literally the worst article I've ever read. Not even coming from a Mac miller fan, but a fan of hip hop. Which clearly you are not. People have been using other people's beats for years. They rap over them and put them on mixtapes which they put out themselves and use for promo. Mac miller fans might be too young and stupid to understand how the culture works, but most rap fans were upset that lord chose to pick on the new kid. Any famous producer could sue countless artists for the same thing lord did.

This article was written like it was a report for school by someone who just did some Internet research.
Posted by Alkasmolik on January 23, 2013 at 5:03 PM · Report this
Sean Jewell 10
@9 Good points!, a few things. 1. The derivative work is real, but the length in seconds is a myth. Samples are samples. 2. You are correct about the many forms of potential copyright violation, recording, composition, performance, etc, etc. 3. Lord's 3 second sample is a very small part of his composition and his song sounds entirely different than Peterson's Dream Of You after his work as a producer is done. 4. Lord's record sales, in Rap and Hip Hop, have no direct sales effect on Peterson's records coming out of the Jazz crates (if anything it probably increased sales so DJs could hear the source themselves), and therefore have very little effect on the future financial potential of Peterson.

There are so many factors, and good cases to look into. Beastie Boys vs. James Newton, The Verve vs. Mick and Keef, 2 Live Crew vs. Roy Orbison, George Harrison and the Chiffons...etc. Every case is different and has to be treated individually.
Posted by Sean Jewell http://https://twitter.com/cursedjewell on January 19, 2013 at 11:32 AM · Report this
9
Great aricle.

But! a label or corporations somewhere own the rights to the master recording of Oscar Peterson"Dream of You". And as Finesse directly sampled (not replayed) this he or his label must have cleared it. if he didnt he is also in a bit of trouble....... but he cleared it right???

Secondly the publishing to Oscar Peterson "Dream of You" is owned by a Publisher somewhere .your "derivative work" argument may hold up as its only 4 notes though.

Glad to see Ness come out on top.
Posted by Justin Fashanu on January 19, 2013 at 7:28 AM · Report this
Sean Jewell 8
@7 It's all here in plain english: http://www.copyright.gov/ . I can't give you legal advice (though I do advise you to read my post a little closer because the answers to your questions and links to references are in there). But basically it's like mama said: ASK before TAKING, Don't take TOO MUCH, SHARE if you've been helped, and SAY SORRY when you get caught.

SEE ALSO: http://www.lib.purdue.edu/uco/CopyrightB…
http://fairuse.stanford.edu/
https://www.legalzoom.com/intellectual-p…
Posted by Sean Jewell http://https://twitter.com/cursedjewell on January 18, 2013 at 8:16 PM · Report this
7
How is what Mac did any different than what almost every other hip hop artist does? Use tracks by other artists and upload them/release them via mixtapes? I have been pondering this since the dispute occurred, and can't make sense of it. For example, J. Cole's mixtapes have multiple Kanye beats, along with Jay Z's work.... please! explain so I don't end up another Mac Miller!
Posted by Mike1234 on January 18, 2013 at 7:19 PM · Report this
Sean Jewell 6
@3,4 Thank you for reading.
Posted by Sean Jewell http://https://twitter.com/cursedjewell on January 18, 2013 at 7:17 PM · Report this
Sean Jewell 5
@1,2,You just said the same thing I did. To be fair you're correct about two parts of a sound recording, but either way Miller is in the wrong and that does nothing but complicate the point unnecessarily.
Also, $10 million is likely not an arbitrary number but rather a prediction worked up on the potential future earnings of Lord Finesse's work in this case. There are people (lawyers) who get paid to figure that stuff out, it is very much based in reality:

The legal penalties for copyright infringement are:

Infringer pays the actual dollar amount of damages and profits.
The law provides a range from $200 (if done unknowningly) to $150,000 (if knowingly infringing) for each work infringed (EACH work! 700,000 downloads on dat piff alone.)
Infringer pays for all attorneys fees and court costs.
The Court can issue an injunction to stop the infringing acts.
The Court can impound the illegal works.
The infringer can go to jail.
Posted by Sean Jewell http://https://twitter.com/cursedjewell on January 18, 2013 at 7:09 PM · Report this
4
By the way. Thanks to the writer of this article. Really great read.
Posted by Epiphany1998 on January 18, 2013 at 6:44 PM · Report this
3
No one really knows though since the details of the settlement aren't available to the public. They could have settled for 10 Million. It probably would have cost Mac more than that to go through the whole trial and he probably felt that it wasn't worth it. There is that possibility of factoring in the projected costs of something (like a trial) to figure out if it's worth more to go through it or just pay out the dough and end it all immediately. It probably would've cost him more than 10 million to go to trial.
Posted by Epiphany1998 on January 18, 2013 at 6:40 PM · Report this
2
Also, your legal analysis is incorrect. There are two copyrights in every song, one for the composition of the music, and another for the actual recording. Whenever you sample another recording thats a potential violation, and you must get clearance. Also, court's have decided that sampling any piece of an actual recording belonging to another is a potential copyright violation, no matter how small the snippet. Do the research and you'll see this.
Posted by F on January 18, 2013 at 5:03 PM · Report this
1
Yo, Mac Miller doesn't owe Lord Finesse $10 million, they settled a $10 million lawsuit for an undisclosed amount. When you file a lawsuit you can claim damages as high as you want, which is where that $10 million figure originated. It has not basis in reality, and in all likelihood they settled the law suit for an amount that is much less than that. SMH.
Posted by F on January 18, 2013 at 4:44 PM · Report this

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