In the continuation of Marque’s exposé into Jay-Z’s 99 problems, where we seek to ascertain what issues do not form part of those 99 problems, we have discovered that learning the alphabet is not one. Emma Johnsen and Nathan Matlock explain.
Jay-Z has recently sued an Australian online retailer, The Little Homie, claiming flagrant infringement of his famous track, alleging that The Little Homie knowingly infringed his registered trademarks, copyright and engaged in misleading and deceptive conduct through the sale of products including the book entitled “AB to Jay-Z”.
Little Homie sells children’s books and t-shirts online and each of the products have a pop culture reference on it, because, #trendy. Is your kid really cool if they’re not counting from 1,2, 3 through to the Notorious BIG?
One of the books includes the following extract on the back cover: “If you’re having alphabet problems, I feel bad for you son, I got 99 problems but my ABC’s aren’t one.”
Jay-Z, real name Shawn Carter, commenced proceedings which allege that the book:
• knowingly and flagrantly infringes the copyright of Jay-Z’s lyrics in the song 99 problems;
• infringes his registered trade marks; and
• trades on use of Jay-Z’s likeness and brand.
Little Homie is yet to file a defence, however, this case is one that may bring up the seldom tested defence of parody and satire. To be successful in a defence of parody, Little Homie will have to establish that the use of the lyrics is both “fair” and for the primary purpose of parody.
It may struggle to make out that parody was its main purpose, as opposed to the purpose of using Jay-Z’s lyrics to sell books, make money and get rich or die trying.
On the trade mark front, Jay-Z will have to establish that the way in which Little Homie has been using the mark ‘Jay-Z’ is likely to make consumers think there is some kind of commercial connection (such as an endorsement deal) between Jay-Z and Little Homie.
Given the different elements of IP law at play in this matter, we’ll be watching closely.
* Marque Lawyers are the Sydney firm that help keep New Matilda out of jail… pro bono. You can find out more about them here.
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