Photo Credit: Pieter-Jannick Dijkstra / CC by 2.0
Kanye West (known also as Ye) has moved to dismiss a copyright infringement lawsuit filed over the allegedly unauthorized use of Boogie Down Productions’ “South Bronx” (1987) in 2021’s “Life of the Party.”
West (represented in the case by New York City-based Marashi Legal) and his counsel just recently submitted the motion to dismiss as well as a corresponding memorandum, with a company called Phase One Network having filed the infringement action in November of 2022.
In brief, Phase One said in the initial complaint that it owned the recording and composition of “South Bronx,” which Kanye West (who’s named as a defendant alongside his G.O.O.D. Music label, Stemplayer, LTD, and others) had allegedly attempted to sample in the aforementioned “Life of the Party.”
But after a July of 2021 “formal licensing request” and related talks failed to bring about the desired result for the defendants, said request was retracted in November of the same year, according to the memorandum. Subsequently, the seemingly minor sample of “South Bronx” – referring in part to “’horn hits’” and a “’drum fill,’” per the memorandum’s summary of the action – was removed from the eventual official release of “Life of the Party.”
Before then, however, amid a since-resolved feud between Drake and West, the Canadian rapper is said to have leaked the original version of “Life of the Party,” alleged “South Bronx” sample and all.
“While the Complaint does not allege Ye Defendants released the infringing track themselves,” the newly filed memorandum summarizes, “it alleges that Ye Defendants took pre-orders for the Stem Player with the intent to distribute the infringing track, and intentionally orchestrated Drake’s leaking of the track in order to provide access for unidentified third party ‘social media influencers’ advertisements.”
Back to the actual arguments behind the Donda artist’s motion to dismiss the “convoluted” complaint, the legal text claims off the bat that the plaintiff lacks exclusive ownership of – and the right to sue over alleged infringement involving – “South Bronx.”
In support of the position, the document underscores that one of the two original members (and a “South Bronx” creator) of Boogie Down Productions, KRS-One, previously said on film, “I give to all MCs my entire catalog. You will not get sued if you sample a KRS-One record or do an interpolation of my lyrics. Anything. My entire catalog is open to the public.”
“Phase One therefore bears the burden of presenting evidence of its proper ownership,” the filing states, “in contrast to KRS-One’s dedication of the copyrights to the public at large. Failing to do so, Phase One’s complaint should be dismissed with prejudice.”
Elsewhere in the multifaceted motion to dismiss is an argument that the use of “South Bronx” (outside the official release of “Life of the Party”) constitutes fair use – a stance that the defendants say is supported by the court’s findings in the infringement battle waged between Tracy Chapman and Nicki Minaj.
“In sum, Ye Defendant’s use of South Bronx while creating the track and experimenting with it- with the intent to contact the license holder for approval, as evidence by such act, is undoubtedly fair use,” the filing relays.
“To find otherwise, courts would be inundated with cases where potential copyright users petition the Court for declaratory judgment on an individual basis any time a licensing agreement was not reached,” the document reads.
Also explored in the dismissal motion is the infringement claim’s alleged lack of specificity (“Plaintiff does not specify what section, which chords, what percentage, and how frequently the alleged infringement appears”) and the alleged need to dismiss with prejudice the willful infringement claims in particular.