November 2, 2018 Musicology No Comments

Timberlake and are being sued for stealing “Damn Girl.”

And I’d say they’ve got a big problem.

Justin Timberlake and (William Adams) are facing an infringement suit over “Damn Girl,” their collaboration from Timberlake’s very successful “Futuresex/Lovesounds” record. That record is a decade old. And this case was filed in 2016. But after two years of legal back and forth things should now move toward either a settlement or a trial. And from what I see, Timberlake and should settle this case asap.

And I don’t feel particularly out on a limb. I think the last time I said, “settle this, asap” was when Ed Sheeran got sued over his monster hit Photograph. Sheeran of course gets sued a lot, but I rarely find merit in it. In the case of Photograph v. Amazing, I took the position that he should settle that one if he could. Less than a year later, settle he did.

I’m about equally confident here. But it’s still an interesting case, for musicology reasons, and for legal ones. It’s worth looking at how we got here, and trying to foresee where we’re going.

First, some stuff that doesn’t matter and why that’s so interesting.

In 1969, Musician/composer Perry Kibble wrote a song called “A New Day Is Here At Last.” (He also wrote Boogie Oogie Oogie by the way.) Kibble’s colleague, sax player J.C. Davis, mostly known for his association with James Brown bands, performed, recorded and released “A New Day Is Here At Last” (I think I’ll shorten it to “A.N.D.I.H.A.L.” from here on.) and on that record label, the song is attributed to Perry Kibble. Kibble registered his copyright of “A New Day Is Here At Last” with the US Copyright Office and when he passed away in 1999 he bequeathed the rights to the song to his sister, Janis McQuinton.

In 2005, supposedly unbeknownst to McQuinton, that song along with some other JC Davis tracks was remixed and re-released on vinyl by a lover of old records, DJ Shadow (Josh Davis), and that vinyl records’s notes say all copyrights belong to J.C. Davis. There’s no mention of Perry Kibble having written ANDIHAL.

In 2006 Justin Timberlake and Will.I.Am sampled that DJ Shadow remix album and employed it in the track Damn Girl on Timberlake’s Futuresex/Lovesounds album which sold 4M units, won Grammys and was followed by a hugely successful JT tour. The liner notes mention that Damn Girl “samples” A New Day Is Here At Last. But McQuinton’s legal action argues they did much more than sample it.

Importantly, McQuinton (again supposedly) didn’t know of Damn Girl at all until ten years later at which point she heard it and recognized it as her brother’s song ANDIHAL. She set up a corporation called PK Music, assigned the song’s copyright to the corp, reinforced her registered copyright and sued for infringement.

Wanna hear what she heard? Here are the two tracks.


So she sued. But litigation tends to go a certain way.

It’s been two years of legal filings — first the complaint, then defendant motions to dismiss, plaintiff oppositions, rulings; all that fun stuff. Legal issues such as the “discovery rule” and “507b” are in play. I’m not a lawyer, I’m a musicologist, but it appears that all the back and forth to this point has centered around mitigating factors such as the question of what time window of Damn Girl’s earnings might potentially to be used to calculate damages. (“Damages” are the equivalent of the earnings that are attributable to the infringement. Often you’re limited to the earnings that occurred within three years prior to your claim and most of Damn Girl’s earnings were well before that, so this is a big deal.).

Also there’s the defendants’ proposal that this should really be a copyright ownership dispute that might not directly involve them at all. Remember, Timberlake and licensed the sample from DJ Shadow.

DJ Shadow’s website says,

Shadow remixed all of JC Davis’ music from the original tape, in the original studio and on the original mix board. Will I Am sampled this EP for Justin Timberlake, allowing JC to finally benefit financially from his years of musical service.”

That sounds great. Good for Mr Davis. But the defendants’ take is that perhaps McQuinton’s beef is with him (Josh Davis) or the other Davis (JC), but not the defendants’, so they motioned, “how about we throw this case out and McQuinton can sue someone else instead.”

A Hollywood Reporter article I read was more impressed with all of those arguments than I am. It wrote, “Statute of limitations aside, the (defendants’) motion’s footnotes contain salient defenses that will be hard for McQuinton’s suit to overcome,” and quoted this memorandum from Will.I.Am’s attorney Robert Jacobs…

“Plaintiff ignores the fact that…before Damn Girl’s release, Defendants sought and obtained mechanical and sample use licenses for Day’s use from J.C. Davis, who admittedly had originally recorded and released Day in 1969…and from Josh Davis who released a remix of the 1969 recording with J.C. Davis’s permission in 2005 on an album identifying J.C. Davis as the composition’s sole copyright owner.”

But I respectfully disagree with the Hollywood Reporter. I think the plaintiffs will overcome it and a half.

Of course, that’s easy for me to say today given the news last week that they’ve overcome some of it already…

Rulings are not going Damn Girl’s way.

District Judge Vernon Broderick denied defendants’ motions. He does not agree for example with the statute of limitations argument that McQuinton should be expected to have known about Damn Girl no later than 2007, nor apparently that she should’ve known about it any earlier than the decade later when she says she heard it. He’s not limiting the time window at this point. And as for the copyright ownership dispute proposal, he wrote “it defies logic to turn this into an ownership claim involving Davis, who’s not a party to this infringement suit at all.” Here’s that opinion.

So with that litigious rigor aside, we can get to the interesting part. And it’s this: Musicologically speaking this suit is going to be tough to defend against.

I just wrote an article about sampling versus interpolation a few days ago. And it’s relevant here.

Sampling and interpolation are different terms that get lumped together and confused. Consider that Tracy Chapman just last week sued Nicki Minaj over a track Minaj made called “Sorry.” I don’t think Minaj meant to infringe. She made a bunch of public references to the “sample” she couldn’t get permission for. But Chapman is not suing Minaj for failing to get permission for a sample, or at least not just that. She’s going to sue Minaj for stealing THE SONG, which is different.

It’s much the same thing with Damn Girl versus A New Day Is Here At Last.  The Futuresex/Lovesounds album credits J.C. Davis (and I’m assuming Josh Davis too) for the sample. But that they “sampled” A New Day Is Here At Last, is not nearly the point at all.

I don’t even think “sampling” is mentioned anywhere in the complaint.

The original complaint’s main claims are these. (and I agree with all of them.)

  • 29. A substantial amount of the music in Damn Girl is copied from A New Day Is Here At Last. Specifically, a substantial part of the drum, conga drum, organ, bass guitar, electric guitar, and saxophone parts in Damn Girl, were all copied from A New Day Is Here At Last.
  • 30. The music in Damn Girl is not the product of independent creation.
  • 31. The music in Damn Girl is strikingly similar to A New Day Is Here At Last.
  • 32. The portions of A New Day Is Here At Last copied in Damn Girl are not only quantitatively substantial, but qualitatively important to A New Day Is Here At Last, including the introduction, rhythm, harmony, melody, and “hook” all of which are copyrightable elements individually and in combination.

This is not about sampling per se. Sampling is about the recording of the music. This is about the music itself.

The first claim is just a statement of fact. Damn Girl contains lots of samples from ANDIHAL. And tt’s not like ANDIHAL is very deconstructed and was raw source material of newly constructed beats. No, long sections of instrumental samples play verbatim just as they do in ANDIHAL. So the drum, conga, organ, guitars and sax, etc. are certainly in both tracks. That they don’t mention sampling is perhaps their way of begging the argument that the sample clearance doesn’t clear you to use the composition.

The other three points are more complex and conclusional. But I’d go so far as to say Damn Girl is clearly written to the tune of ANDIHAL. (Stop to think of it, they should perhaps begin considering the 2 Live Crew parody defense.)

Have I calculated how much of Damn Girl is attributable to A New Day Is Here At Last? I have. It’s plenty. If we knew how much money Damn Girl can be shown to have earned, we’d be able to calculate the exact number.

And given that, the defense’s game plan thus far makes perfect sense to me. But it doesn’t seem to be working. and at the point at which their non-musicology tactics are exhausted, I think it’ll be time to talk about a number. Possibly a staggering one.

Written by Brian McBrearty