Messy Mya, whose real name was Anthony Barré, was shot and killed in New Orleans on November 14, 2010. Before his death, Mya had a YouTube channel where he would post videos of himself walking around the city rapping, making jokes and often insulting people. Mya was part of the Bounce Music phenomenon in New Orleans, and with his raspy voice, flowing hair in fluorescent colors and multiple tattoos, Mya was becoming a well-known New Orleans personality through his online videos.

In August 2010, Mya created a video recording of himself walking in New Orleans, speaking in street vernacular, titled “Booking the Hoes from New Wildings,” and posted the video on YouTube. The video includes Mya saying “What happened at the New Orleans” and “Bitch, I’m back by popular demand.” About two weeks later, Mya posted another video of himself on YouTube titled “A 27 Piece Huh?” with more street jargon including the phrase “Oh yeah baby. I like that.”In February 2016, world-famous recording artist Beyoncé released a single, and later a music video, titled “Formation” which included the voice of Messy Mya speaking the three phrases from his YouTube recordings: “What happened at the New Orleans,” “Bitch, I’m back by popular demand” and “Oh yeah baby. I like that.” In April 2016, Beyoncé released an album titled “Lemonade” that included the single “Formation.” The phrases from Mya’s video were also used during the “Formation World Tour” featuring Beyoncé.

On February 6, 2017, the Estate of Anthony Barré and Angel Barré, the sister of Anthony Barré, filed suit in the U.S. District Court for the Eastern District of Louisiana against Beyoncé Knowles Carter and her producers, record label, distributors and publishers for copyright infringement alleging that the defendants used “samples” from Anthony Barré’s copyrighted video recordings to make their recording and music video of the song “Formation,” and the album “Lemonade,” and on the “Formation World Tour,” all without permission. See, The Estate of Anthony Barré and his Sole Heir, Angel Barré v. Beyoncé Knowles Carter, et al., Civil Action No. 17-1057.

The plaintiffs alleged that the “Formation” single, the “Lemonade” album and the “Formation World Tour” all were extremely profitable. They claimed damages in excess of $20 million for the unauthorized use of samples from Barré’s video recordings.

The defendants filed a motion to dismiss the complaint for failure to state a claim. They conceded that the “Formation” music video and the live performances during the “Formation World Tour” included approximately ten seconds of audio from Messy Mya’s YouTube videos. In particular, the defendants acknowledged that their music video uses four seconds of audio from the 5 minute and 14 second YouTube video titled “Booking the Hoes from New Wildings” and six seconds of audio from the 1 minute 53 second YouTube video titled “A 27 Piece Huh.” The defendants argued that although they did not have a license granting permission to use these samples from Mya’s YouTube videos, their use is protected by the fair use doctrine.

Fair use is an affirmative defense to copyright infringement found in the U.S. Copyright Act, 17 U.S.C. § 107. The Supreme Court has said that fair use is “a privilege in others than the owner of the copyright to use the copyrighted material in a reasonable manner without his consent.” Harper & Row Publishers, Inc. v Nation Enterprises.

A case-by-case analysis is required to determine whether a particular use of a copyrighted work is a fair use. Section 107 provides a list of four relevant, but non-exclusive, factors for a court to consider in making the analysis: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the part used in relation to the copyrighted work as a whole and (4) the effect of the infringement on the market for or value of the copyrighted work.

On July 25, 2017, the District Court denied the defendants’ motion to dismiss. The decision was necessarily limited in scope because on a motion to dismiss, a court must accept the facts alleged as true. The question presented was whether those facts support a conclusion that the defendants’ use was not fair use. Although entered at an early stage of the litigation, the decision suggests that the defendants may have a difficult time convincing the court to sustain a fair use defense.

For example, the first factor to consider in a fair use analysis, the purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes, would seem ultimately to weigh against Beyoncé and the other defendants. In analyzing the purpose and character of the use, courts will usually consider whether the infringing use is “transformative;” that is, does the use add something new with another purpose or a different character to the copyrighted work, or does it merely repackage or republish the original?

This factor was pivotal in Cariou v. Prince, a case involving what is referred to as “appropriation art.” The court held that the defendant Richard Prince’s use in his own works of 25 Rastafarian photographs taken by the plaintiff, Patrick Cariou, which Prince had significantly altered, was a fair use because Prince’s works were “transformative.” The court however refused to find fair use as a matter of law with respect to five portraits where Prince’s alterations had been only minimal.

In Beyoncé’s case, unaltered portions of Mya’s audio recordings were taken and inserted directly into the defendants’ works. The defendants agreed that they had done nothing to Mya’s recordings to change their expressive content or message but contended that they were using the recordings for a different purpose than that for which Mya had used them.

The defendants claimed that they used the samples to depict the history and culture of New Orleans, while Mya’s stream of consciousness narratives to the camera as he walked the streets of New Orleans were intended to serve a different purpose.

The court however found that Beyoncé used the samples as an “illustrative example of New Orleans culture through the voice and catchphrases of a well-known local icon,” and therefore that the use of Mya’s copyrighted work was not transformative.

The court discussed each of the remaining three elements of a fair use defense and found that at least at this early stage of the litigation, the plaintiffs had alleged facts sufficient to show that each of the factors could weigh against a finding of fair use. The court therefore denied the defendants’ motion to dismiss.

The Beyoncé case appears to be the first time that a serious defense to sampling has been raised on the basis of fair use. Artists typically have defended claims of copyright infringement by asserting that the sample was a de minimis portion of the sampled work and therefore not protected by copyright. The Beyoncé defendants however admit that Mya’s samples were used as “raw material” for the creation of their music video and concerts which the defendants claim were about “black Southern resilience that featured depictions of the history and culture of New Orleans.”

Artists, songwriters, producers and attorneys in the music business will be watching closely for the outcome of the case to see if fair use might be a viable defense to copyright infringement where unaltered samples have been taken from copyrighted sound recordings and used for another purpose than that for which the recordings were originally intended.

If you have questions about whether the fair use doctrine might allow the use of copyrighted materials in your music, documentaries, films or video, please contact Frank Morgan at 410-783-3524, or