• UK COURT DIARY

     

    SONG STRIKES DISCORDANT NOTE FOR P. DIDDY

    Hip hop music found an unlikely venue recently in the English High Court, when it ruled in a case involving the internationally famous rap artist, Sean “Puff Daddy” Combs (Dearlove v Sean Combs, [2007] EWHC 375 (Ch)). The judgment quoted extensively from music not exactly composed for a courtroom, but more importantly confirmed that song lyrics can function as advertisements within the meaning of a settlement agreement. 

     

    PRESS PAUSE…

    The parties first went to court last year, when an English record producer, re-mixer and recording artist known as Diddy sued Mr Combs for passing off. The latter had been marketing himself and his recordings internationally under several different trading names, including “Diddy.” On the eve of the trial, the parties settled by way of an agreement in which Mr Combs undertook to refrain, in the United Kingdom, from

    “advertising, offering or providing, or causing/procuring others to advertise, offer or provide any goods and services not being the Claimant’s goods and services as a remixer, producer, songwriter, recording artist and DJ under or with reference to the word ‘Diddy’.”

    The settlement agreement expressly permitted Mr Combs’ use of the alternative moniker “P. Diddy,” and following the agreement Mr Combs’ record company began to promote him as “P. Diddy” outside the U.S.

     

    …THEN PRESS PLAY

    The new proceedings began after the launch of a new album by Mr Combs entitled, “Press Play.” On it were six songs in which Mr Combs referred to himself as “Diddy.” In addition, several websites alleged to be under Mr Combs’ control contained references to him as “Diddy,” including on MySpace, YouTube and the record company website, www.badboyonline.com. 

    The claimant sought summary judgment for breach of the settlement agreement on the basis that Mr Combs had no real prospect of success at trial.

    On the issue of the Internet websites, the judge was inclined to agree. The websites were accessible from the U.K. and the content, which included listings of U.K. concert dates, made it clear that the websites targeted, inter alia, a U.K. audience. The judge was sceptical about Mr Combs’ claim not to have determined the overall content of the sites, but ultimately declined to give summary judgment on the point as there was at least some evidence to suggest that Mr Combs might not have been able to overrule decisions on content taken by his record company.

     

    DIDDY DO IT?

    On the song lyrics, however, the judge had a definite view. Quoting from the songs incorporating references to “Diddy,” the judge identified the following:

     

    • “Hard top six-four, I’m Diddy no tint” from “We Gon’ Make It”;
    • “Diddy got it wrapped like cocoons” from “Hold Up”;
    • “I’m the honourable diddy” from “Everything I Love”; and
    • “Mainline this new Diddy heroin/ the Afro-American dream is too evident/ the potential to be the first black President/ iTunes, download me in every resident…/ My CD’s in 3-D, holograms/ the future, y’all need to holla man/ the live show’s a hard act to follow man,” from “The Future”

    In the judge’s view, song lyrics referring to “Diddy” could breach the settlement agreement, but only if they amounted to “advertising, offering or providing, or causing/procuring others to advertise, offer or provide” goods and services not being those of the claimant.

    On careful examination, the judge concluded that most of the references to “Diddy” were no more and no less than straightforward references to Mr Combs. The same could not, however, be said for the longer extract from the song, “The Future.” In that case, the lyrics seemed to exhort the listener to buy Mr Combs’ recordings, to download them from the iTunes music service, and to attend his concerts (“the live show’s a hard act to follow man”).

    The “Press Play” album was sold in and promoted in the U.K., and the judge found that the use of “Diddy” in the song “The Future” amounted to promotion of Mr Combs’ recordings and concerts here. It therefore breached the settlement agreement, and the judge ordered summary judgment against Mr Combs on this point.

     

    COMMENT

    The spectacle of a High Court judge probing the deeper meaning of hip hop lyrics may be entertaining in itself. However, the case does offer serious lessons for the music business.

    Hip hop lyrics are known for braggadocio and self-promotion, and the success of this form of advertising is evident from the worldwide success of the genre. Such self-promotion within song lyrics is so much an unconscious part of hip hop style that fans probably do not perceive it as advertisement so much as generalised hype. Certainly they would not parse lyrics in the way the judge did in this case.

    Nonetheless, there was no evidence that the public would understand the lyrics in any other manner than that posited by the judge, and on a simple textual analysis the meaning of the words was tolerably clear. As a result, other musicians who have undertaken not to use names or trade marks in the course of trade should exercise care when including them in lyrics, too. 

    Although the claimant in this case did not own a registered trade mark, the outcome begs the question whether lyrics can also infringe a registered mark. The result suggests that they can if they are capable of being understood as an exhortation to buy goods or services under the sign in question, such as recordings or concert tickets. In practice, this risk is most likely to arise in connection with an artist’s or band’s name. Such names should be searched, cleared and where possible protected as registered trade marks in important markets as early as possible in a band’s career to avoid the potential for such conflicts.

    For P. Diddy, the judge’s findings may have struck a discordant note. Others may fare better by remembering that, where lyrics are concerned, the courts are likely to take them at their word.