Earlier this month, a New York jury awarded nearly $1.2 Million to former DJ Orrin Lynn Tolliver, Jr. in a dispute over a sample used in The Black Eyed Peas’ hit song “My Humps.”
Tolliver, who formed an early hip-hop group in the 80’s called Sexual Harassment, collaborated with his friend and producer James McCants to record a song called “I Need A Freak” at McCants’ studio in Cleveland. Tolliver composed the music and lyrics for the song, but worked with McCants at his studio to record the song. McCants registered the song with BMI, giving songwriter credit to Tolliver. Years later, McCants granted licenses for use of the song, infringing on Tolliver’s copyright as songwriter and denying him his share of the royalties.
In 2000, the song was released on a compilation. Tolliver took notice and sent a cease-and-desist letter through counsel. When the song was sampled on tracks by other artists, including The Black Eyed Peas, Tolliver claimed that he never gave permission for the samples. In 2005, McCants granted a license on his own for use of the composition in the hit song “My Humps.” After the song became successful, McCants granted other licenses for use of the composition. When McCants was threatened with legal action by his old friend, he at first denied granting a license to The Peas, then claimed he had issued a license to them, but not for the composition. After years of litigation, the Court sided with Tolliver.
In the course of the lawsuit, McCants changed his story about the nature of the artists’ agreement. A judge rejected these inconsistencies and granted summary judgment in favor of Tolliver. Years after the collaboration between the friends, there was no trace of a written agreement. Of course, McCants and Tolliver disagreed about what their “understanding” had been at the time. The court correctly distinguished between Tolliver’s rights in the sound recording (the copyright for which was owned by McCants) and the song composition itself, which was owned by Tolliver as a songwriter. Tolliver registered his copyright to the composition and McCants never challenged the validity of this copyright.
Without a written agreement to clear up the dispute, the court considered the parties’ versions of the story. The court focused on the fact that Tolliver was the undisputed composer of the song and, therefore, the presumed owner of the copyright to the composition itself. Without any evidence that Tolliver gave up his right as songwriter to ownership of the composition, the court concluded that Tolliver was presumed to be the copyright holder. The court found that it was “undisputed that [Tolliver] authored the Composition and defendant did not. Therefore, ownership of the copyright vested in [Tolliver] initially. As a defense, [McCants] claims that he received an assignment of [Tolliver’s] entire interest in the Composition. To be valid, such an assignment would have to be in writing and signed by plaintiff.” Since there was no evidence to back up McCants’ story that he ever had any rights to the composition itself, his case did not hold water. By granting a license for the composition that belonged to Tolliver, McCants infringed on Tolliver’s rights to the song, even if he may have had a small share in the recorded song as producer.
The case eventually went to a jury to determine the damages. Earlier this month, Tolliver was awarded $816,877.28 in lost profits and $368,704.31 in actual damages for copyright infringement. In total, the case was a nearly $1.2 million victory for the former DJ and songwriter.