Go ____ Its Your Birthday

Both the Eleventh Circuit and a district judge showed their familiarity with hip-hop music and its unique culture, in a classic infringement case, Lil' Joe Wein Music, Inc. v. Jackson
Slip Copy, 2007 WL 2274519 (11th Cir. Aug. 9, 2007).

Plaintiff’s song was written by the infamous Luther Campbell, “Its Your Birthday.” Plaintiff bought the song from Campbell. Defendant’s song, ”In Da Club” as written by Connecticut Gold Coast resident, Curtis James Jackson III, also known as “Fifty Cent” or “Fitty” to his friends. Fitty is in an unrelated fit right now, concerned that arch-rival Kanye West’s new album, to be released on the same day as his (9/11, but don’t expect any deep comments on the event that will mark that day forever), will top his on the charts. He has even threatened to quit the biz if this occurs.

But Mr. Cent is happy about the result in this case, because the court of appeals affirmed the trial court’s grant of summary judgment, even over an expert’s report (Praise the Lord!). Mr. Cent and his co-defendants conceded access – a wise move given that Luther’s work sold more than copies. Both courts cast doubt on the copyrightability of the phrase at issue: “Go _____, it's your birthday.” Mr. Cent's lyrics were:

Go, go, go, go

Go, go, go shawty

It's your birthday

We gon' party like it's yo birthday

We gon' sip Bacardi like it's your birthday And you know we don't give a f---

It's not your birthday


In affirming, the court of appeals delved into history: “A signature and long-standing feature of live performance rap music is the hip hop chant. The chant is a form of audience engagement staged by the performer (mc, dj or rapper) who provides a familiar phrase or saying, often in call and response format, designed to energize, include, affirm and engage the audience.” This went to the underlying music of the phrase and not its lyrics, which defendants demonstrated were preexisting, including in a 1993 movie. Here the court recited the district judge’s prowess:

Lil' Joe Wein disputes the relevance of this evidence. With respect to Who's the Man?, Lil' Joe Wein contends: (1) that the Defendants fail to describe how the line is spoken in terms of rhythms, melodies and rhythmic placement and the nature of its similarity to the songs at issue in this case; (2) that the lyrics are hardly discernible to the ordinary listener without specialized listening equipment; and (3) that there was an issue of contested fact as to whether the film was in circulation or distribution such that it could be considered the source or inspiration for “Its Your Birthday.” The Court disagrees.

Lil' Joe Wein's own expert, Judith Finell (“Finell”), states that every element of similarity that exists between “In Da Club” and “Its Your Birthday” is present in Who's the Man?. Finell reached a similar conclusion with respect to “The Birthday Jam,” finding the only difference to be the use of different proper names. The [Trial] Court, without the assistance of any specialized listening equipment, viewed the segment of Who's the Man? and had no difficulty discerning the lyrics.

Go Fitty, its your birthday, or not.