IP Law Daily, COPYRIGHT—E.D. Tex.: A late rapper’s estate can go forward with a release of posthumous album, (Jul 24, 2024)

By Matthew Hersh, J.D.

Claims of the rapper’s former producer are swept aside.

The estate of a rapper who was gunned down on a Texas street in November 2020 can move forward with the release of an album containing unreleased tracks that are allegedly derivatives of tracks that had been first released when the rapper was alive, the federal court for Sherman, Texas has held. The court, in permitting the estate to move forward, rejected on both procedural and substantive grounds a claim by the rapper’s former producer that he was the rightful owner of the works (Estate of Melvin Noble v. Bollin, No. 4:23-cv-00716-ALM (E.D. Tex. July 22, 2024)).

The lawsuit arises out of a dispute between two figures in the Texas hip hop world. Melvin Noble, Jr., better known as Mo3, was a hip hop artist in North Texas prior to his murder in November 2020. As one profile worded it, during his career he was “here to create heartfelt anthems for the streets, with lyrics about real-life experiences, obstacles, and getting it on his own coming from the mud.” Ray Bollin is an owner of Absolut Production Recording Studios in Garland, Texas. Its top artist list, according to a social media profile, include artists known as Future, Rich home Quan, Kevin Gates, and Snootie Wild—along with Mo3.

The dispute kicked off in May 2023 when the rapper’s estate filed a multi-pronged lawsuit against the producer and his recording studio. The now-amended complaint asserts that after the rapper’s death, the producer refused to relinquish the master recordings for his work—including some recordings that had not yet been released. Worse, the lawsuit asserts, the producer then marketed those unreleased recordings to the late rapper’s record company, filed copyright registrations for the works in his name, and demanded extortionate terms of the estate for their return. The complaint asserts claims of breach of contract, conversion, copyright infringement, violations the Digital Millennium Copyright Act, tortious and violations of right of publicity under Texas law. The complaint also seeks a declaration that the estate is the sole owner of the recordings.

The producer (accompanied by the studio) fired back in November of this year with a series of counterclaims. Those counterclaims asserted that the estate had failed to pay the producer “royalties, music publishing royalties, other music publishing income, and other gross compensation.” The producer followed up in May of this year with a demand for a preliminary injunction to prevent the estate from releasing an album containing certain remixes or other derivative works that the producer had recorded with the rapper. The producer premised this demand for an injunction on the ground that it would constitute infringement of the producer’s own rights to the recordings. (The album, Estate, made its way to streaming sites in any event last month).

Preliminary injunction. The court made quick work of the preliminary injunction demand. Two procedural infirmities doomed the request. First, although the producer filed a brief in support of an injunction, he never actually filed a motion for an injunction. Second, although the producer premised his preliminary injunction request on the claim that the estate was about to infringe on his copyrights, the producer had not filed any actual claim of infringement. The court also expressed some puzzlement over the nature of the producer’s copyright claim, as the producer was asserting only that he was a “joint author” of the works at hand and not the sole author. “It is unclear to the Court why Defendants might be asserting a copyright infringement claim against the Estate if Bollin and Mo3 were indeed joint owners of the works,” the court noted.

Nonetheless, the court pushed on to the merits of the injunction demand—which it found sorely lacking. For one thing, the court noted, the producer was not likely to prevail on his claim that he was a joint author. “To establish that his contributions were significant enough to make him a joint author,” the court noted, “a party must show that he and the other party: (1) intended to create a joint work; and (2) each contributed independently copyrightable material.” Here, the evidence showed, the producer had not been given any credit as a producer or author when the tracks were actually released—and he did not register copyrights in the works until two years after the rapper passed away. That evidence, the court noted, “calls the validity of the copyrights at issue into question.”

Moreover, the court noted, even if the producer could surpass all these hurdles, he had not sufficiently shown any copying by the rapper’s estate. The producer came forward with no evidence that any of the songs to be released by the estate were substantially similar to any of the tracks he claimed to own—and in several cases he was unable to even identify just which tracks on the upcoming album allegedly infringed his rights. The injunction claim would fail on this ground as well.

Finally, the court noted, there was no evidence that the producer would suffer irreparable harm if the injunction were not granted. In fact, the testimony was to the contrary: one of the producer’s colleague answered “yes” on the stand when asked if monetary damages could be calculated. Thus, the producer and his colleagues “have not shown they are entitled to the extraordinary remedy of preliminary injunctive relief,” the court found.

The Case is No. 4:23-cv-00716-ALM.

Judge: Mazzant, A.

Attorneys: Brent Alan Turman (Bell Nunnally & Martin LLP) for Estate of Melvin Noble, Jr. Eugene J. Radcliff (Radcliff Law Firm) for Ray Gene Bollin, Jr.

Cases: Copyright TechnologyInternet CaliforniaNews