Don't Pull A TufAmerica & Sue When You Don't Have The Right To

How about making a song that samples Mike D and Ad-Rock’s probably exuberant reactions after the judge threw out TufAmerica’s lawsuit against them?

The Beastie Boys’ landmark 1989 album Paul’s Boutique made pretty heavy use of samples, and did so without permission. While the music from the album is considered revolutionary, the methods used to create it are fairly illegal. These days even the smallest samples need permission before they enter the public sphere, and the New York rappers’ classic Paul’s Boutique was constructed primarily by sampling. It’s fair to say someone was bound to get upset over it.

​TufAmerica’s reasons for filing a lawsuit

TufAmerica is fairly aggressive when it comes to legal action over sampling, and so its no surprise that the label eventually decided to take on the Beastie Boy’s album – the company filed a lawsuit in 2012, one day before the death of Adam Yauch, one of the group’s three members. Last Tuesday U.S. district judge Alison Nathan granted the musicians’ summary judgment, and not because of the importance of Paul’s Boutique or how much each sample was used, but rather because of a mistake on TufAmerica’s part.

The sample in question was of a song by Trouble Funk, composed of group members Robert Reed, Tony Fisher and James Avery. The 1980s R&B and funk group had a deal with Island records that eventually terminated, after which TufAmerica struck a deal with Reed and Fisher and bought up the rights to administer the groups copyrights. Avery was not included in the agreement. Because he wasn’t part of the deal, the license provided to TufAmerica was non-exclusive. This means that the label could only sue on the artists’ behalf, and not on its own terms.

​The word exclusive won’t give you exclusive rights

TufAmerica even anticipated that this may happen in the future, and included a clause pertaining to Avery’s absence from the deal within it’s pages, “[t]o the extent that exclusive licenses of any of Avery’s copyrights in the Trouble Funk Copyrights… are necessary for ‘standing’ or similar reasons in connection with filing and maintaining a Trouble Funk Infringement Action, Avery hereby exclusively licenses such copyrights to Tuff City Records for the purpose of filing and maintaining Trouble Funk Infringement Actions.”

However, Nathan noted that just because TufAmerica included the word exclusive in it’s deal with Trouble Funk, does not mean that the company has exclusive rights to sue over use of the group’s music. She noted that TufAmerica’s 2012 filing did not, in fact, have any legal standing, since the label could only sue on the artists’ behalf. Contracts between labels and artists should include clear distinctions between the right to sue on a musician’s behalf, and the exclusive right to sue, to prevent cases like this in the future.