By John Balz
Sunday, May 8, 2005

Squabbling is a staple of hip-hop music. So is stealing. Except hip-hop artists have never considered it stealing to take riffs and pieces from each other's work. It's a form of creative appropriation. That's why no one made any artistic objection in 1979 when hip-hop's first mega-hit, "Rapper's Delight," by the Sugar Hill Gang, openly borrowed the catchy rhythm and background music of an earlier song called "Good Times" by the group Chic. All that mattered was that the Sugar Hill version of the song made people want to "up jump the boogie to the bang bang boogie."

Today, however, hip-hop artists are trying to shield what they once happily shared. Producers and rappers, heirs to a culture built on borrowing, are now worrying about intellectual property and copyright. And the purveyors of this anti-establishment style of music, much of which glorifies "gangstas" and thumbs its nose at the justice system, are availing themselves of the legal establishment and the courts to settle disputes over the ownership of lyrics, rhythms and the catchy refrains known in hip-hop as hooks.

To anyone who has listened to the lyrics of hip-hop, this is nothing short of a flip-flop. Hip-hop songs have taken a jaundiced view of America's courts, government and corporations. Public Enemy's curt assessment: "Plain and simp the system's a pimp." The hip-hop emcee Nas called the U.S. justice system a "billion dollar business," adding: "Courts, lawyers and jails / We all slaves in the system, I'm bout to rebel." Now it seems as though the rebellion will have to wait until court is adjourned.

More than pride of authorship is at stake: Hip-hop is a big business. And so more and more often, courts are being asked to answer the question of how much musical borrowing is too much. A New York federal judge is currently handling a dispute between the New Jersey-based rap group I.O.F. (It's Only Family), an artist who goes by the name Ludacris and "The College Dropout" Grammy winner Kanye West. In a case filed last year, I.O.F. claims its members handed Ludacris and West four demo tapes only to see the refrain of their song, "Straight Like That," end up on Ludacris's "Chicken-N-Beer" CD as a West-produced number called "Stand Up." Despite a February settlement conference, no agreement has been reached.

For now, like other angry vocalists known in hip-hop as emcees, the opposing sides in the case have resorted to a wax war. "Now desperate artists trying to sue, but just making some claims / can't get in the spotlight for nothing and it makes em' insane," Ludacris spits out on his new "Red Light District" album. I.O.F.'s response: "You should have known by the spots where I saw you dummy / if I was there I probably had lawyer money / plus you stole anyway so I'ma see you in court / and you're too light to fight and too short for sports."

Hip-hop has always thrived by improvising off recognizable works in a way that is one part invention and one part cultural commentary. "It's a postmodern art," writes hip-hop historian Nelson George, "in that it shamelessly raids older forms of pop culture . . . and reshapes the material to fit the personality of an individual artist and the taste of the times."

Geography and technology fostered early artistic heists. Public parks and street corners became dance clubs and concert halls for aspiring DJs and b-boys (break boys, or dancers). Graffiti fiends spray-painted their tags (personalized logos) on subway cars for all to admire. New recording technology created a generation of "sampling" producers who made previous recordings the backbone of new compositions.

Hip-hop did not just borrow sounds. Images and personalities were fair game, too. You can hear a thousand kung fu movies in a Wu-Tang Clan record. The group N.W.A. has credited the movie "Tango & Cash" (starring Sylvester Stallone, Kurt Russell and Teri Hatcher) and Tom Selleck's "An Innocent Man" with the "reality" portrayed in some of its music. The gangster drama "Scarface" (starring Al Pacino) is hip-hop's signature film, thanks largely to the number of emcees who've copped part of Tony Montana's ruthless masculinity as their own.

Hip-hop copyright cases involving musical sampling first emerged in the early 1990s, and courts developed a sophisticated doctrine for handling them. Copyright law is meant to protect original expression defined as music, lyrics and performance style. In order to establish copyright violations, accusers must prove clear ownership and persuade "lay observers" that the copy comes directly from preexisting music.

The cases usually hinge on three questions: Is the sampled portion legally protected? Is the sample so trivial or small that it is not infringing? Is the copier's use of the sample protected by "fair use" doctrine?

Courts have applied these questions fairly consistently. For example, in 2002 a district court judge in New York declared that Wyclef Jean's use of the line "Clap your hands, y'all, it's alright" did not violate the copyright of a 1970 R&B recording called "The Hand Clapping Song" because it was a common phrase. When Marley Marl, an early pioneer in sampled drum sounds, sued Snoop Dogg for using portions of "Hard to Handle," the court ruled that the sampled portion was an insignificant piece of sound and therefore not Marl's.

And finally, the Supreme Court held that a 2 Live Crew parody of Roy Orbison's "Oh, Pretty Woman" was valid under the fair use doctrine because it represented a new and "transformative" form of Orbison's classic. In other words, 2 Live Crew had done a good job of "flipping it" -- taking an existing creation and adding his personal style so as to make a new creation. More recent cases, however, aren't limited to questions of borrowing and reinterpreting themes or beats, but plagiarizing hooks, whole songs and lyrics.

Traditionally emcees have fought things out through their music. One of the most famous quarrels unfolded in 2001 between Jay-Z and Nas over who was the most original emcee. Jay-Z admitted to appropriating a Nas lyric about gun violence, then justified his actions by casting aspersions on Nas's talent. "So yeah, I sampled your voice, you was using it wrong. You made it a hot line, I made it a hot song."

Jay-Z is again the current target of plagiarism charges. Critics accuse him of "biting" lyrics from more than a dozen artists, including Dr. Dre, Tupac and his mentor Biggie Smalls, a.k.a the Notorious B.I.G., who died in a 1997 drive-by shooting. (Memo to classical music fans: Biting means ripping off another person's style.)

Jay-Z has offered his defense in his music. "I'm not a biter, I'm a writer for myself and others. If I say a 'BIG' verse, I'm just biggin' up my brother," he rapped on "The Black Album." Jay-Z considers his appropriation a tribute to rap's greats, without whose past creativity he could never have become a rap superstar.

Stealing from slain icons is one thing, but what about when living icons steal from little nobodies? Here, legal threats appear to be a new form of old behavior. In Virginia, a little-known emcee named Face Dirty is talking about filing a lawsuit and accusing Fat Joe of stealing the hook and melody for last summer's club hit "Lean Back." Mississippi artists Reese & Bigelow are threatening a suit against Bone Crusher for stealing "Never Scared."

If these cases are simply small artist attempts to extort money from established stars, the nobodies shouldn't hold their breath. Federal courts handling cases involving lyrics and beats have been applying copyright standards and setting some new precedents.

The first is that unknown artists should be wary of giving their demos to big names. In March, a court dismissed a lawsuit by Philadelphia songwriter Michael Lowe, who claimed that Dr. Dre and Xzibit plagiarized his beats on Xzibit's "Relentless" album. Lowe said he gave a demo recording of a beat to one of Dre's associates specifically so that the associate could pass it along to Dre. Dre got the copy, liked it and ended up using the track. While Lowe claimed that Dre and Xzibit needed to provide evidence that they had a copyright on the beat, the court ruled the opposite. It was Lowe who needed to show that he owned the copyright.

A second established precedent seems possible for lyrics and catch phrases. Similarities between different versions of identically titled songs may not be enough to imply a copyright violation. The precedent here may emerge from a 2005 ruling involving Cash Money artist Juvenile's hit "Back That Azz Up." Juvenile released the track in 1997, the same year that New Orleans DJ Jubilee released "Back That Ass Up." After Juvenile's version turned out to be a hit, Jubilee registered for a copyright and filed a lawsuit on the same day.

Despite the almost identical names, Jubilee was unable to prove that his version was significantly similar to Juvenile's. Jubilee's lawyers introduced newspaper articles commenting that the two songs were strongly alike. Juvenile's team, meanwhile, called musicologists to the stand claiming, among other things, that while Jubilee's hook was in the major key of A-flat, Juvenile's was in D minor. Ultimately, the U.S. Court of Appeals for the 5th Circuit ruled in favor of the differences. Jubilee's hook was a unique "Back That Ass Up," it said, while Juvenile's hook was actually a sample of the Jackson 5's "I Want You Back."

Ludacris and West might take heart from the Juvenile case, but whatever the legal outcome may be, hip-hop's courtroom rows separate this music from its cultural traditions. If emcees continue parsing the smallest differences between songs, they may foster a hazy legal compromise and extend a culture known for bending old creations in new ways. But it'll be a long way from the roots of this raw music. To see Ludacris and I.O.F. fight it out in court instead of a club puts to rest dreams of an old school renaissance. To bite an LL Cool J. line, don't call it a comeback.

Author's e-mail: jpbalz@hotmail.com