On April 4, 2024, Tuff City Records sued Universal Music Group over an alleged infringement that dates back to 1992, when Mary J. Blige, just twenty-one years old, released her first top-ten hit, “Real Love.”
The complaint, filed in New York, claims “Real Love” infringes on a well-sampled record from 1973, the Honey Drippers (not the one with Robert Plant) “Impeach The President.”
Before we look at the music, let’s mention a few technicalities. First, it’s been thirty years, and second, do they have their ducks in a row over at Tuff City?
As to three decades and the statute of limitations, it’s not the limitation it used to be, and I’m not a lawyer, but my musicologists understanding would be that they can still sue, but can’t recoup thirty years of damages. They can look back a few years, and they can look ahead. But better late than never.
As for the ducks and the rows, this isn’t Tuff City’s first rodeo. Still, a lot of the time, the first few rounds are full of technicalities. So this is a good time to remember that although copyrights are vested in an author once their work is in “fixed form,” to actually bring a lawsuit and protect that copyright, you must have your work registered. Copyright registration comes in two flavors, PA (Performing Arts) and SR (Sound Recordings) and in this case, the complaint assures the court that the plaintiffs hold an SR copyright registration “in connection with that musical composition (Impeach The President) and sound recording.”
And I immediately wonder if that might be limiting. An SR copyright generally applies to the recording itself, which in this case is clearly relevant since “Real Love” is being accused of containing samples of the audio from “Impeach The President.” But to what do they think “in connection with that musical composition” will lead? Are they suing over the underlying work as well as the audio?
It can be a little murky. Say you record yourself singing “I did it MY WAY” in the shower… you can register your copyright to that recording using the SR form, but you’re not Paul Anka and therefore can’t protect the underlying song. It’s his. Today, it’s possible to fill out an SR form, add some information about the author of the work and accomplish both types of registration in one fell swoop, but it’s all subject to some details. For example, the author of the work needs to be the same person(s) registering the SR copyright. At any rate, I’m inclined to wonder whether the plaintiffs will have registered copyright in the underlying music, and I’ll be interested to see if that comes up in the answer to the complaint. And that’s not the only complicating factor.
It doesn’t appear that Mary J. Blige sampled “Impeach The President” directly, but “Real Love” does sample a 1987 record called “Top Billin'” from Audio Two, and that record sampled “Impeach The President!” That’s why we’re here. More questions occuring to me now…
Did Blige KNOW that “Impeach” is the underlying drumbeat that rode into “Real Love” on the “Top Billin'” sample? (Yeah, probably.) Did she pay Audio Two for the license to that sample? Did Audio Two pay the Honey Drippers?
Now would be a good time to mention that Blige isn’t even named in the lawsuit. Again, the defendant is UMG, the record company.
While we’re at it, it’s worth noting that “Impeach The President” was sampled a ton. It’s in Doja Cat’s “Can’t Wait,” and hundreds of other songs. WhoSampled.com, a website that knows these kinds of things, says there might be 800+ tracks out there that took advantage of the isolated drums that kick off “Impeach The President,” including Janet Jackson, L.L. Cool J, Nas, J. Cole. So, lots of songs you know.
It kicks off Top Billin’ and appears throughout. But it could prove significant that while Audio Two’s beat is built from “Impeach,” it is not especially similar, compositionally, to “Impeach.” The beatbox rendition of one would not be confused with the other. The rhythm placements are just very different.
And then that opening “Top Billin'” loop is right there, in the beginning of Real Love and throughout, a tiny bit sped up, possibly a bit affected, but pretty much the same. And the beat, with its rhythmic placements, is compositionally intact.
When you license intellectual property, whether it’s a drum loop or a drug patent, terms govern the limits of your use. My own license agreements commonly include that you can’t license my IP and then turn around and relicense it to another. In music production, sample licenses are often surprisingly straightforward and say essentially, “You can use our sample for just about anything, except creating from it another licensable sample.”
If “Real Love” sampled “Top Billin’,” whose beat is built from “Impeach The President,” then you have “Impeach The President” samples in your track. That would indeed be an unauthorized use and there’s no such thing in sampling as “too little to matter.”
We call these situations “sample chains,” where A sampled B which sampled C; the chain is the provenance ledger of the underlying intellectual property. And the chain might track different flavors of IP. If you sampled the chorus from Pras’s “Getto Superstar” (the one with Mya) then you have compositional IP from Kenny Rogers and Dolly Parton’s “Islands In the Stream” in your production. Robin Gibb (Bee Gees) composed that, and he’s going to want to talk to you about your interpolation of his underlying work.
Most of the time, when a work is sampled, it will involve both the SR and the PA copyrights. Drum rhythms however are endowed with less proprietary value. There are only so many rhythms to go around, and we want creators to be able to go on creating music by reusing the drum rhythms that are pleasing to us; we don’t allow them to be monopolized. We often say drums aren’t copyrightable, and that’s overly general, but in this “Real Love” lawsuit, there’s nothing substantial in terms of a copied underlying composition. It’s just a drum beat and not nearly the same as the one in “Impeach.”
Therefore in all three of these works and any claims that might criss-cross between them, the idea that one infringes upon the composition of another will be challenging to make.
And speaking of Kris Kross by the way, Jump? Also on the list of songs that sampled “Impeach.”
So, at first blush, “Real Love” does have “Impeach” samples inside, but there’s still a bit to unpack here. I’ll be staying tuned as this unfolds.
