District Court, South Carolina (No. 2019-cv-366)
Comment by Awani Kelkar
Rapper Kanye West used an audio sample of a young girl passionately praying in his 2016 song “Ultralight Beam” and now her adoptive parents want him to pay them for doing so. West obtained permission from the young girl’s biological mother, who captured the Instagram video that “went viral.” But, as legal guardians of the youngster since 2012, the plaintiffs’ claim that they owned the rights to her recorded performance and that West’s use of the audio sample amounted to unauthorized copying. The parents are suing for copyright infringement in the District Court of South Carolina, seeking an injunction and damages. They have also included two other causes of action: wrongful appropriation of personality and unfair trade practice.
The case raises the question whether the biological mother is a joint author of the work, such that she has a right to grant third parties (here Kanye West) permission to use the video. Joint works require that 1) two or more authors created it, and 2) the authors must have intended their contributions be merged into inseparable or interdependent parts of a unitary whole.
Here, it is relatively easy to show that the biological mother is an author, since she shot the video and lent her voice to it. More difficult is to determine whether the authors (biological mother and the young girl) intended to merge their contributions into a unitary whole. First, the intent of a minor cannot be ascertained as minors are incapable of giving consent. (For instance, according to the Restatement (Second) of Contracts §12, infancy is a recognized disability that prevents a person from being capable of establishing intent, which is necessary for a contract.) Second, it is unclear whether the the legal parents of the child authorized the video recording, as they were not present in the car. Lastly, in such an informal setting (i.e. a spontaneously captured Instagram video), where express consent is not usually sought, there is no clear precedent on what constitutes authorial intent to merge into a unitary whole. If Kanye West can establish that the Instagram video is a joint work, then the biological mother was legally permitted to use or license the work, without seeking authorization from the young girl or her parents. In such a scenario, the only relief that the Plaintiffs can seek is a portion of profits made from the exploitation of the joint work.