As reported by Reuters, legendary hip-hop and rap artists "The Beastie Boys" were recently sued in federal court in New York by TufAmerica, Inc., the purported exclusive licensee of recordings that were allegedly "sampled" by The Beastie Boys in 1986 and 1989. Generally speaking, "sampling" involves taking a portion of one sound recording and reusing it as an instrument or a rhythm in a different sound recording.
The timing of the lawsuit could hardly have been worse, given that it was filed the day before Adam Yauch, one of the founding members of The Beastie Boys, known to his legion of fans as "MCA," passed away after a long battle with cancer.
The lawsuit alleges that The Beastie Boys engaged in unauthorized sampling of portions of the songs "Say What" and "Drop the Bomb" by R&B and funk band "Trouble Funk." The Beastie Boys' songs at issue include "Hold It Now Hit It," "The New Style," "Car Thief" and "Shadrach," which were originally released in 1986 and 1989. The lawsuit seeks damages for copyright infringement.
One issue in the case will be the length of time that TufAmerica has waited to bring its claims. As a general rule, copyright infringement actions must be brought within three years from the date on which the copyright infringement is discovered, and this time limitation may be extended if the infringement is ongoing. Notably, however, the Southern District of New York (where the instant action was brought), has in recent years applied the "injury rule," rather than the "discovery rule," meaning that the statute of limitations bars claims brought three years after the initial publication of the allegedly infringing sound recordings, regardless of when the plaintiff discovered the alleged infringement. Thus, the applicable statute of limitations may bar TufAmerica's claims in this case.
The Beastie Boys may also have a defense that TufAmerica acquiesced in their use of Trouble Funk's songs by not raising the issue sooner. The Beastie Boys could argue that they relied upon such acquiescence in continuing to sell their sound recordings over the past twenty-plus years, and therefore TufAmerica should be "estopped" from asserting its claims.
Apparently recognizing this possibility, the lawsuit alleges that the sampled portions were "effectively concealed to the casual listener" and that the infringement was only discovered "after conducting a careful audio analysis . . . that included isolating the suspected portion of the recording." This, in turn, begs the question as to whether the portions of the songs at issue are truly "substantially similar" (the standard for copyright infringement), given that such similarity may not have been apparent to an ordinary listener.
It will be interesting to see how this dispute plays out. The case is TufAmerica, Inc. v. Diamond, et al., 12 Civ. 3529 (S.D.N.Y.).