|Thursday, August 16, 2007||
11th Circuit Affirms Holding that 'It's Your
Birthday' Chant Not Original to Luke Recording
The appeals court summarily affirmed the included opinion of a federal district court, which had concluded that the only point of similarity between the two works was a phrase that was not an original, protectable element of the plaintiff's copyrighted work.
Go Derrick, it's your birthday
Go Freddie, go, go, go
Go Freddie, go, go, go It's your birthday
Curtis James Jackson is a rap music artist who records under the name "50 Cent." In 2003, Jackson released a recording of the song "In Da Club" on the album Get Rich or Die Tryin'. This song features the lyric
It's your birthday
We don' party like it's yo birthday
We gon' sip Bacardi like it's your birthday
And you know we don't give a fuck
It's not your birthday.
The district court in its opinion emphasized the introduction of evidence that the phrase "Go ____, it's your birthday" "was a common hip-hop chant." Included in the references by the court was the use of the phrase by a character in the 1993 motion picture Who's the Man? featuring rappers Dr. Dre and Ed Lover.
In the face of such references, the district court concluded that Lil' Joe Wein had failed to offer evidence that "Go ____, it's your birthday" in "Its Your Birthday." The court also rejected the argument that the phrase combined with the "rhythms, beats, and melodies" as used by Campbell constituted an original creation. Such elements were also reflected in Who's the Man? and other works; also evidence unrefuted by Lil' Joe Wein.
The court concluded that the phrase "was a common, unoriginal, and noncopyrightable element of the song" and "not entitled to copyright protection." Other than this phrase, the court found no similarities between Campbell's and Jackson's works. The district court held that given the evidence offered, no reasonably jury could find that the works were substantially similar.
The 11th Circuit affirmed the district court's opinion without further elaboration.
The appellate panel comprised Judge Charles R. Wilson, Judge William H. Pryor Jr., and Judge James C. Hill.
Lil' Joe Wein was represented by Bruce Rogow of Fort Lauderdale, Fla. Jackson was represented by Karen L. Stetson of Miami Beach, Fla.
Full text at http://pub.bna.com/ptcj/0616342Aug9.pdf