2 Live Crew’s Decades-Long Legal Battles And Its Current Fight For Copyright Termination

Contributing Author: Heather Antoine

Today, I bring you a story of intrigue involving one of the most famous hip-hop groups of the 80s and 90s, multiple lawsuits, bankruptcy, crappy deals, and copyright termination laws. For this IP nerd, it feels like Christmas.

As one of my partners and I headed to lunch last week, we reminisced over “the good old days” of hip hop and rap. We discussed Biggie, NWA, and Tupac and how music was “just better” and “had a message.” Then I remembered 2 Live Crew’s Hoochie Mama, an anthem played on college campuses around the US in the 1990s and started to laugh. It is easy to look back and forget that while the lyrics of some of 2 Live Crew’s songs were admittedly problematic and not always sophisticated, they were a force – a group that pushed the envelope so much that in 1989 the recording of As Nasty As They Wanna Be was declared “obscene” by a court in Florida, which explained,

“…the focus of the Nasty recording is its lyrics. Based on the evidence at trial, music of the “rap” genre focuses upon verbal messages accentuated by a strong beat. 2 Live Crew itself testified that the Nasty recording was made to be listened and danced to. The evident goal of this particular recording is to reproduce the sexual act through musical lyrics. It is an appeal directed to “dirty” thoughts and the loins, not to the intellect and the mind.”

Then, a year later, the members of 2 Live Crew were arrested on obscenity charges in a battle that went all the way to trial. Yes, you read that correctly, they were arrested because the lyrics to their songs were considered “obscene.”

2 Live Crew was plagued by mammoth legal battles. The group’s most successful album, As Nasty As They Wanna Be, was released in 1989, sold over 2 million records and featured songs like Me So Horny and The F–k Shop. In the middle of this success, however, 2 Live Crew chose to appeal the district court decision, above – they won – were arrested and had to defend themselves – they were acquitted – and were involved in copyright litigation that they pursued all the way to the Supreme Court (Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)). In that case, 2 Live Crew was sued for copyright infringement related to their use of a piece of Roy Orbison’s song Oh, Pretty Woman. The court determined that the use was in fact a parody, and qualified as fair use – i.e., they won again.

There were some losses in there as well; most notably, 2 Live Crew’s lead, Luther “Uncle Luke” Campbell, was sued by George Lucas over the naming of his record label, Skyywalker Records. Uncle Luke eventually paid $1 million and changed the company’s name to Luke Records.

The truth about the law is that you can win, and winning is great, but at the end of the day, winning/losing/and everything in between costs a lot of money. So, by 1995, Uncle Luke and Luke Records ended up in bankruptcy court.

Enter Joseph “Lil’ Joe” Weinberger. Lil’ Joe was a tax lawyer that was hired by Luke Records to act as CFO and general counsel and to help 2 Live Crew manage the constant litigation they faced. When Uncle Luke and Luke Records filed for bankruptcy, Lil’ Joe listed himself as a creditor. Lil’ Joe purchased 2 Live Crew’s master recordings and trademarks out of bankruptcy for $800,000 and formed his own label, Lil’ Joe Records.

A master recording is the original recording of a song, sound, or performance. The net effect of this purchase means that since 1995, every time you played/heard a 2 Live Crew song on the radio, bought an album, etc. Lil’ Joe received those royalties – not the members of 2 Live Crew. Of course, Lil’ Joe did not own any new music that 2 Live Crew recorded, but unfortunately, their later work was simply not as popular.

While we are in the nitty gritty of copyright law, let’s discuss copyright termination. It involves the termination of a grant or transfer of one’s copyright. If termination is successful, any rights that were previously transferred would return to the creator of the copyrighted work. Termination rights are highly technical and specific. For example, as explained by the Copyright Office:

“Grants may only be terminated during a specific statutory window of time and must specify the date that the termination goes into effect. The effective date must fall within a five-year “termination period,” which is based on factors set forth in [17 U.S.C.] sections 203, 304(c), or 304(d), as applicable. The notice must be served no less than two years and no more than ten years before the effective date and must be recorded with the Office before the effective date.”

On November 4, 2020, the members of 2 Live Crew – specifically Uncle Luke, Mark Ross (“Brother Marquis”) and the estate of Christopher Wong Won (“Fresh Kid Ice”) sent a formal notice terminating all previously acquired copyrights. Less than a year later, Lil’ Joe Records filed suit in district court in Florida seeking declaratory judgment from the court that the rights could not be terminated and that the masters were works made for hire making them ineligible for termination.

The case is primarily based on the 1978 addition of Section 203 of the Copyright Act, which was added in the early 2000s. The law “permits authors (or, if the authors are not alive, their surviving spouses, children or grandchildren, or executors, administrators, personal representatives or trustees) to terminate grants of copyright assignments and licenses,” so long as 35 years have passed, hence forming the term “35-year law.”

The parties attempted mediation where a settlement was not reached and the parties now have pending cross-motions for summary judgment that are set to be heard in January. In the brief filed in support of their Motion for Summary Judgment, 2 Live Crew opens with the following:

“In ruling on this motion, the court need only address one material issue:An artist may, 35 years after publication of a work, terminate the initial transfer of ownership for that work’s copyrights and reclaim the copyrights. The band 2 Live Crew granted to Skyywalker Records copyright ownership of five albums from 1986 to 1990 and sent a notice to terminate said grant with an effective termination date 35 years after the publication of each album. Was 2 Live Crew’s termination effective?

The answer to this question is “yes” and Defendants/Counterclaimant’s first counterclaim for a declaratory judgment validating 2 Live Crew’s termination should be adjudicated in Defendants’ favor. Plaintiff’s other claims – for copyright and trademark infringement – are meritless and should also be adjudicated in Defendants’ favor, as set forth below.”

I will report back next year when the court rules on the pending cross-motions. In the meantime, I want to leave you with Uncle Luke’s poignant words:

“The obscenity case was extremely far-reaching for hip-hop… This case is the one that allows artists to say what they want on their records. I didn’t have to challenge the ruling in federal court, but I was prepared to go to jail for my rights. When I look back, I realize the far-reaching importance of it, but at the time we were somewhat blackballed by both the mainstream and hip-hop industry. If I hadn’t made the appeal, it wouldn’t have set a precedent and become case law. … I stood up for hip-hop. Whether I get credit for it or not. I appreciate it if you understand the history and pay respect to people like myself.”

Personally, I am pulling for 2 Live Crew on this one.

Legal Entertainment has reached out to representation for comment, and will update this story as necessary.

Heather Antoine is a Partner and Chair of Stubbs Alderton & Markiles LLP’s Trademark & Brand Protection and Privacy & Data Security practices, where she protects her client’s intellectual property – including brand selection, management, and protection. Heather also helps businesses design and implement policies and practices that are compliant with domestic and international privacy laws.