“My Name Is” – Trademark within hiphop?

“Murda on the Beat, so it’s not nice”, “We got London on the Track”, “Young chop on the beat”.

If you have listened to popular music in the past decade, particularly hip-hop, you have likely heard recurring phrases such as these included at the start of a song. These clips are known as “producer tags” and are used to inform the listener of which artist was primarily responsible for production of the songs beat, in contrast to the rapper/vocalist, who is credited as the official artist on most streaming services. The “Beat” is nonetheless one of if not the most defining elements of a song in contemporary popular music, therefore producers have a strong incentive to protect their brand by using tags.

Oftentimes a lot of creative input goes into the producer tag itself, which frequently uses a sample or a distinctive sound that doesn’t explicitly reference the artist’s name, such as Pierre Bourne’s iconic “Yo Pierre, you wanna come out here?”, a line of dialogue taken from an episode of “The Jamie Foxx Show,” or Kanye West’s use of the “Perfect” sound effect from the 1991 video game “Street Fighter II: The World Warrior”. In some instances, such as DJ Khaled’s famous (or infamous, depending on who you ask) “We the best / Another One” they can even appear to be the producer’s only contribution to the song entirely.

As with the use of logos in the fashion industry, producer tags have on occasion also become integral parts of the work itself. Khaled himself described the importance of tags in his 2015 interview with Pitchfork where he stated “…it’s made me rich… without Another One and We the Best on the record, it’s not a hit” [1]. Perhaps the most notable example of this phenomena occurs on “Father Stretch My Hands, Pt. 1” off Kanye West’s 2016 album “The Life of Pablo”, where Metro Boomin’s tag “If Young Metro don’t trust you, I’m gon’ shoot you” forms the most memorable moment of the song.

Considering the above, it therefore becomes obvious that producers would stand to benefit from the legal protection of their tags as intellectual property. However, as producer tags themselves often take the form of samples from other material not affiliated with the artist, this poses an interesting question of how if at all an artist can claim trademark over a soundbite which is in fact subject to another artist’s copyright.

This raises two key issues:

1. Copyright:       Can a producer’s use of a tag fall be considered exempt from copyright                  protection?

At face value the use of a copyrighted sample as a producer tag does not fit cleanly into any of the purposes identified in the copyright act, meaning that it would be difficult to claim the right of fair dealing as a defence. Therefore, the producer must resort to either licensing the material from the original artist or arguing that their use is sufficiently transformative to establish an original copyright. In select instances, such as the tags from Pierre Bourne and Kanye West cited above, the sample comes from audio in an entirely different medium, meaning such a claim may be possible, however for the most part case law concerning music to music sampling has found it to be insufficiently transformative. In practice many producers avoid copyright issues through the use of sample libraries, a paid for service which provides collections of samples that have already been licensed from the original copyright owners.

While I am not aware of any domestic or international judicial decisions concerning copyright infringement with respect to producer tags, ultimately their continued use and prevalence suggests that it hasn’t become a significant legal concern if for no other reason than the fact that the originating artists can’t be bothered to bring a claim to court.

1. Trademark:     Can a producer successfully claim trademark over their tag?

The argument for trademark and/or passing off is more straightforward. The explicit purpose of the tag is to identify the producer of the song, serving both the listening public and other artists, who serve as a producer’s potential clientele, mirroring the origins of trademark in the marketplace. The prevalence of internet memes and references to producer tags in media outside of songs serves as evidence for their broad recognition amongst the public, while the previously referenced quote from DJ Khaled indicates their ability to generate goodwill within a specific genre. By consequence use of a tag by another producer could be deceptive and potentially damaging to the original producer’s reputation if the work is of inferior quality.

The primary obstacle to claiming trademark protection for producer tags therefore remains the fact that the samples used to create these tags are often subject to the original artist’s copyright. While legal means for the use of sampling copyrighted material exist in music as discussed above, these do not extend to establishing a trademark for the artist who sampled the material. Recognizing a trademark in sampled material would impose restrictions on the original creator’s rights to use their work, preventing them from sampling it in a similar fashion without violating trademark. This scenario appears likely to disrupt the established balance of rights emphasized by the Supreme Court of Canada, and therefore may prove fatal to such a claim. Alternatively, a producer could perhaps seek to arrive at a licensing agreement with the original creator for the use of their work as a trademark, however this may prove financially prohibitive.

In conclusion, despite the absence of case law on this matter, it seems unlikely, but not impossible, that producer tags for sampled material could attract trademark protection. If a case arises where a party successfully establishes recognition of such a trademark, it will represent a noteworthy development in Canadian Intellectual Property law, involving the generation of a trademark based on previously copyrighted material as well as establishing trademark within the context of a song itself, adding complexity to the already confusing world of intellectual property in the music industry.

Sources:

[1]       https://pitchfork.com/video/watch/over-under-dj-khaled-over-under

The following materials canvas the existing case law related to copyright

[2]       https://www.vondranlegal.com/five-music-infringement-cases-mixingsampling

[3] https://www.iposgoode.ca/2018/06/art-from-fragments-a-legal-framework-for-the-growth-of-canadian-hip-hop-and-digital-sampling/