Raspy-voiced Messy Mya, whose real name was Anthony Barre, made a name for himself on YouTube by poking fun at New Orleans passersby, but the deceased street performer may soon become more famous now that his family is suing pop star Beyonce for copyright infringement.
Beyonce used a sampling of Barre’s ramblings of regional slang on her 2016 hit single, Formation, and, on Feb. 6, his sister, Angela, filed a lawsuit over that usage in the U.S. District Court for the Eastern District of Louisiana.
Lawsuits over sampling are nothing new, but Barre’s political views may set his estate’s lawsuit apart from others.
“What makes the Barre estate likely to succeed is that this is a pretty straightforward case that her brother’s gritty New Orleans political statement is setting the tenor and tone of Beyonce’s entire song,” says Douglas Sorocco, an intellectual property attorney in Oklahoma City, Okla., in a phone interview.
In a Southern drawl-Creole combination, Barre on Formation is heard saying various things, such as “What happened at the new wildin’,” “I’m back by popular demand” and “Yes, baby I like that.”
“It’s not a two- or three-second sampling of music,” Sorocco explains. “It’s a straight-up use of the individual’s spoken word.”
The 22-year old Barre was shot and killed in November 2010 while reportedly leaving the 7th Ward, where he had been attending a baby shower for his unborn son, Juelz. Barre’s surviving family members include Juelz Barre, his sister Angela Barre and grandfather Stan Barre.
Angela Barre, through her brother’s estate, has filed suit, claiming Beyonce neither gained permission to use Anthony Barre’s material on the YouTube video, “A 27 Piece Hunh?”, nor provided attribution.
“This is a common theme in copyright lawsuits involving sampling, where you have producers who are extremely creative and allegedly drawing from multiple sources that have become readily available on the Internet, without always thinking about the business side of things,” says Christiane Cargill Kinney, an entertainment and intellectual property attorney in Los Angeles.
She cited the copyright case of Luther Campbell vs. Acuff-Rose Music Inc., involving Campbell’s rap group, 2 Live Crew, and its sampling of Roy Orbison’s songs, Oh, Pretty Woman and Pretty Woman, and whether it constituted fair use under the Copyright Act of 1976.
The Supreme Court ruled unanimously in favor of Campbell, with Justice David H. Souter writing that a parody’s commercial character is only one element to be weighed in a fair use inquiry and that insufficient consideration was given to the nature of the parody in weighing the degree of copying.
One issue that Beyonce’s attorneys can argue is that Formation was released on April 23, 2016, while Barre’s YouTube video’s copyright wasn’t registered until after April 25.
“Under 17 USC section 412, based on the dates Barre’s songs were registered with the Copyright Office, it appears the plaintiff will not be able to pursue an award of statutory damages or attorneys’ fees under their copyright claim in this case, although they can certainly attempt to make a case for actual damages,” Kinney asserts.
But Jordan Sigale, an intellectual property lawyer in Chicago, contends that Barre’s uploading of the video file on YouTube before his death makes it a copyrightable work.
“The issue is that the rights granted depend on the licensing agreement that YouTube had in use at the time that this gentleman uploaded his video.”
Given that Formation was the lead single in Beyonce’s sixth million-selling studio album, actual damages, if awarded, could land a significant payout for Barre’s estate.
“Proving actual damages would be based on the percentage of value that Beyonce earned from record sales, licensing, touring and performances and because of Beyonce’s fame, the actual damages of Messy Mya’s appropriation may be more than what the Barre’s estate would get in a normal statutory case of either $30,000 or $150,000,” notes Sorocco, the Oklahoma City attorney.
(A judge or jury has the discretion to award between $750 and $30,000 as statutory damages, but copyright law provides little, if any, guidance as to how this discretion should be exercised when awarding statutory damages unless lawyers for the Barre estate can prove that Beyonce’s infringement was willful. The court could then increase the award up to $150,000.)
A Beyonce advantage is that, in addition to post-mortem right of publicity, in most states intellectual property rights die when the artist passes away.
“Due to Elvis Presley, the laws most favorable for copyright holders who’ve died are in Tennessee,” Sigale explains. Presley died in Memphis, Tenn.
Because copyright laws are more established in California and New York and several of the defendants named in the Barre suit reside or operate their music businesses in those states, Kinney, the Los Angeles lawyer, expects Beyonce’s defense team to file a motion to transfer venue out of Louisiana and to one of those states.
“If transferred, the case would remain in federal court,” Kinney says. “All copyright laws are federal but the Second and Ninth Circuit Courts have better-developed published case law on these issues.”
No matter if Barre’s estate wins or loses, the case will likely have a profound influence on how music producers use material available on the Internet in the future.
“Simply finding something out there on YouTube or elsewhere on the Internet and including it in a recording is not a good business model,” Sorocco asserts. “The case raises some interesting questions about the hours and hours of conversation that people post online and the value of that conversation if it becomes a cultural icon.”