Cardi B’s “Wet Ass Pussy” Doesn’t Infringe Plaintiff’s Song

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The key passage, from Judge Andrew Carter’s opinion Tuesday in Jones v. Atlantic Records (S.D.N.Y.) (all expurgation in original):

The Court finds that the short phrases over which Plaintiff seeks copyright protection are not protectable as a matter of law…. “Because songwriters must be free to borrow sayings and expressions from popular culture, the Second Circuit and courts in this district have found that short and commonplace phrases are not protectable, even when used as the title or repeated lyrics of a song….”

The lyrics over which Plaintiff asserts copyright protection are no more than common

phrases, employed frequently in popular culture and other Hip-Hop songs. The concept of using “p**** so wet” as a rhetorical device in a song is neither original nor unique to Plaintiff, and, in any event, “[c]opyright does not protect ideas or themes.” Indeed, Defendants have cited at least three examples of works pre-dating GEBTP which use similar lyrics.

Likewise, Defendants have provided examples of at least three songs pre-dating GEBTP which use some variation of the phrase “n****s wild’n”. Where the only similarity between two works is not original to the author, a plaintiff’s work is not protected by copyright, and thus is subject to dismissal….

Another passage, which is less central but struck me as amusing:

The rest of the additional lyrics in Plaintiff’s opposition suggest, at best, that Plaintiff and Defendants wrote lyrics about similar concepts. For instance, Plaintiff claims that her lyrics “from east or west coast all the bosses f*ck with me” were infringed upon by Defendants’ lyrics “real n****s love me from the H to the D”. While these lyrics might use a similar rhetorical device to demonstrate their respective rapper’s wide geographical appeal, they are in fact different sentences which communicate similar, yet clearly distinct messages.

The court also rejected plaintiff’s claims of “stalking” and harassment”:

Plaintiff’s complaint suggests that she is also asserting claims … for stalking and harassment….

Plaintiff’s allegations regarding for stalking and harassment, broadly construed as

a claim for intentional or negligent inflection of emotional distress under New York law, are insufficient. For intentional infliction of emotional distress under New York law, a plaintiff must allege “(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress.” “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”

Here, Plaintiff alleges, in conclusory fashion, that Defendants “[stalked] [Plaintiff’s] social media via. Instagram and Facebook to gather content and information to use in the videos as scare tactics.” Plaintiff also claims that she was “alarmed” when Defendant Pete announced that she intended to start her own independent living business knowing that Plaintiff had previously had her own independent living business, and that Pete “was trolling and bullying her the whole time….” After Plaintiff allegedly publicized  Defendants’ alleged copyright infringement via social media, Defendants “heightened the harassment by using other major artists in the label and affiliates to troll and copy all the content that NeceyX released to cause substantial emotional distress, suffering, anguish, humiliation and fear of being singled out of the music industry.” She also alleges that she was caused emotional distress when she realized that Defendants had named WAP after BAPS—the inspiration for her rap name—and that in the music video for WAP Defendants copied her “trademark hairstyle and expression to copy, annoy, and mock” her.

These conclusory and unspecific allegations are insufficient to allege intentional infliction of emotional distress…. At base, Plaintiff alleges that she believes Defendants stalked and harassed her by continuing to mine her social media and music for more content to use for Defendants’ songs. “[K]nowing and purposeful copyright infringement … does not rise to the level of ‘extreme and outrageous’ that New York courts contemplate to sustain an intentional […] infliction of emotional distress claim.” Plaintiff does not allege that Defendants used social media to threaten, verbally abuse, intimidate, or humiliate her, conduct which could rise to the level of intentional infliction of emotional distress…. Plaintiff’s other allegations, that Defendants caused her emotional distress by naming WAP after BAPS, by copying her “trademark” hairstyle, and by Defendant Pete announcing she wanted to open a similar type of business as Plaintiff, also do not rise to the requisite “extreme and outrageous” behavior that could support an intentional infliction of emotional distress claim.

It seems to me that there would be serious First Amendment limits on any intentional infliction of emotional distress claim, especially in the context of a public dispute such as this one, based on “verbal[] abuse” or “humiliat[ion],” but the court didn’t have to go further into this.

BAPS, which is the Halle Berry movie from which Plaintiff apparently derived her rap nickname, stands for Black American Princesses; I mention this in case some readers thought (as I did at first) that this might be another attempt at expurgation—it doesn’t seem to be.

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