Ross had alleged that the Los Angeles-based electro-pop duo’s hit is a copyright infringement of his own chart-topper “Hustlin" which contains the lyric “Everyday I’m hustlin’.” The song was released on Ross’ 2006 debut album, Port of Miami. U.S. District Judge Kathleen Williams was asked to address on summary judgment whether Ross’ three-word phrase is original enough to be copyrightable.
In making the determination, the Judge stated that “The question presented, however, is not whether the Iyrics of Hustlin’, as arranged in their entirety, are subject to copyright protection... the question is whether the use of a three word phrase appearing in the musical composition, divorced from the accompanying music, modified, and subsequently printed on merchandise, constitutes an infringement of the musical composition Hustlin’. The answer, quite simply, is that it does not.”
The Judge's decision points out other cases where short phrases like “you got the right one," "uh-huh,” “holla back,” “we get it poppin’,” and “caught up” failed to meet the originality threshold when divorced from the music. She also writes there’s evidence that Ross wasn not the first to come up with the lyric “Everyday I’m hustlin’.”
The Judge added that even if Ross’ phrase was copyrightable for this merchandise context, he would fail the intrinsic test, the one where ordinary observers judge similarity. “The average lay observer
would not confuse t-shirts bearing the phrase ‘everyday I’m shufflin’’ with the musical composition Hustlin’, nor without reference to Party Rock Anthem and Hustlin’, would an average lay observer
recognize the merchandise as having been appropriated from Hustlin’.” The Federal lawsuit will now continue but will only be about the songs.
Wallace Collins is an entertainment and intellectual property lawyer with more than 30 years of experience based in
New York. He was a recording artist for Epic Records before receiving his law degree from . Tel: (212) 661-3656; www.wallacecollins.com Fordham Law School