In April, Beyoncé asked a federal court in New Orleans to toss out a copyright infringement case filed against her in connection with her hit track, “Formation.” You may recall that the estate of the late New Orleans-based rapper Anthony Barré – better known as Messy Mya – filed suit against Beyoncé in February in the U.S. District Court for the Eastern District of Louisiana for allegedly sampling Barré’s vocals in her song.
According to the lawsuit, the plaintiffs own a number of “protectable copyright interests, both in the musical composition and the sound recording, to Anthony Barré’s original and unique works of performance art,” including “Booking the Hoes from New Wildings.” Barré’s estate further alleged that Beyoncé and co.’s “willful infringement of [Barré’s work] has harmed the Estate of Anthony Barré because, among other things, Anthony Barré was not properly credited for his contributions to ‘Formation’ and ‘Lemonade.’”
Well, as April 18, Beyoncé’s counsel filed a motion to have the case dismissed, arguing that “Plaintiffs have grossly overstated Defendants’ use of the YouTube Videos. While they allege that Defendants used the YouTube Videos in the sound recording and composition of the Song and during the Super Bowl halftime show, these allegations are disproven by the works themselves. In reality, the snippets from the YouTube Videos were used only in the Music Video and, to a lesser extent, during the Live Performances.”
Additionally, Beyoncé’s legal team argues that “Formation” only “used a total of approximately ten seconds of audio from two YouTube videos featuring Anthony Barré walking through the streets of New Orleans speaking to the camera and interacting with others along the way. About six seconds of that same audio was played at Beyoncé’s performances of the Song during the ‘Formation World Tour.'” That six seconds consists of Barré saying, “What happened at the New Orleans” and then saying, “Bitch, I’m back by popular demand.”
Such a short duration of usage is not actionable, according to Beyoncé’s motion to dismiss, which states, “Even in the absence of a license, however, the use of ten or fewer seconds of audio from the YouTube Videos is protected by the fair-use doctrine.” [Note: Fair use is one of the most common exceptions or defenses to copyright infringement. Generally, it refers to “any copying of copyrighted material done for a limited and ‘transformative’ purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner].
With the foregoing in mind, Beyoncé’s team has asked the court to dismiss the case in its entirety.
The suit at hand comes on the heels of a 2016 lawsuit in which independent filmmaker Matthew Fulks alleged that Beyoncé infringed his copyrights, claiming that the trailer for her “Lemonade” HBO special is nothing more than a copied version of his short film, PALINOIA. In documents filed in federal district court in New York last year, Fulks alleged that nine visual similarities amounting to 39 seconds of the 60-second trailer are similar to images in his seven-and-a-half minute film. Those images include “parking garage,” “feet on the street” and “side-lit ominous figures.”
UPDATED (7/28/2017): Judge Nannette Jolivette Brown has refused to dismiss the estate of Barré’s copyright lawsuit, denying a request that she declare the video a protected fair use. Judge Brown found that Barre has made a case that Beyonce’s use of the clips was not transformative and that, although the samples were short, it was a “qualitatively significant” use. She also notes that a motion to dismiss for failure to state a claim, like this one, is “viewed with disfavor and is rarely granted.”
She further wrote in her decision, “Plaintiffs have plausibly alleged in their complaint that Defendants did not change or alter the ‘expressive content or message’ of Anthony Barre’s YouTube videos, but rather used unmodified clips without adding anything new,.”
“[T]he Court concludes at this stage of litigation that ‘the copyright law’s goal of promoting the Progress of Science and useful Arts’ would not be better served by allowing Defendants’ use of Plaintiffs’ copyrighted material without authorization or compensation than by preventing it.”