With Kanye West facing a lawsuit for allegedly using an uncleared sample from the pioneering rap group Boogie Down Productions, his lawyers are making an unusual argument: That a Boogie Down founder promised all future rappers that “you will not get sued.”
In a motion filed Friday, lawyers for West (who legally changed his name to Ye) asked a Manhattan federal judge to toss out the November lawsuit, which claims West included an illegal sample from the 1986 song “South Bronx” on his own his “Life of the Party,” released on 2021’s Donda.
In doing so, they pointed to a brief moment from a 2006 documentary called The Art of 16 Bars, in which Boogie Down founder KRS-One “emphatically states” that he would not file such a lawsuit.
“I give to all MCs my entire catalogue,” he allegedly said in the documentary, which is available in its entirety on YouTube. “You will not get sued if you sample a KRS-One record or do an interpolation of my lyrics, anything. My entire catalogue is open to the public.”
The quote, West’s lawyers say, “calls into question” the ownership of the copyrights that he allegedly infringed. They say the group that filed the case, Phase One Network, must now prove that it – and not “MC’s around the world” — actually controls the Boogie Down copyrights.
The case over “Life of the Party” is one of several recent lawsuits that claim West illegally sampled or interpolated existing music in his tracks. In May 2022, a Texas pastor named David P. Moten accused the rapper of sampling from his recorded sermon in “Come to Life”; a month later, he was sued again, for using a snippet of Marshall Jefferson’s 1986 house track “Move Your Body” in the song “Flowers.”
Such allegations were nothing new. In 2019, West and Pusha T were sued for sampling George Jackson‘s “I Can’t Do Without You” on the track “Come Back Baby.” That same year, he was sued for allegedly using an audio snippet of a young girl praying in his 2016 song “Ultralight Beam.” Further back, West was hit with similar cases over samples used in “New Slaves,” “Bound 2,” and “My Joy.”
Launching its own lawsuit in November, Phase One claimed that West’s people reached out to clear the use of Boogie Down’s “South Bronx” — but then released it anyway when a deal was never struck. “Despite the fact that final clearance for use of ‘South Bronx’ in the infringing track was never authorized, the infringing track was nevertheless reproduced.”
But in Friday’s motion to dismiss, West’s lawyers argued that West had only ever used the Boogie Down sample while experimenting in the studio, and had removed the clip from “Life of the Party” when he was unable to secure a license.
Under those circumstances, West’s lawyers say his use of the clip was covered by copyright’s “fair use” defense. “Defendant’s use of South Bronx while creating the track and experimenting with it with the intent to contact the license holder for approval, as evidence by such act, is undoubtedly fair use.”
