Beyoncé‘s legal team is in formation, and it’s asking the court to toss a lawsuit against the singer arising from her use of a late New Orleans comedian’s spoken-word clips in the first single on her critically acclaimed visual album Lemonade.
The estate of Anthony Barre is suing Bey, along with just about every company and person connected with “Formation.” A February lawsuit filed by the performer’s sister, Angel Barre, seeks royalties, damages and an order that Barre be credited as a writer, composer, producer and artist on the track.
In the “Formation” short film, Barre is first heard at the very beginning saying, “What happened at the New Orleans” and later in the video saying, “Bitch, I’m back by popular demand.” The suit claims the samples infringe the rights in two works of Barre’s performance art, “A 27 Piece Huh?” and “Booking the Hoes from New Wildin.” His voice is not heard in the sound recording of the track, only in the video.
In a motion to dismiss filed Friday, attorney Mary Ellen Roy argues that the heir has grossly overstated the use of Barre’s work in the “Formation” video and its subsequent use during live performances — including a claim involving Super Bowl 50, during which Beyonce performed the song but did not actually use the clip of his voice.
“Among its many references to New Orleans, the Music Video used a total of approximately ten seconds of audio from two YouTube videos featuring Anthony Barre — also known as ‘Messy Mya’ — walking through the streets of New Orleans speaking to the camera and interacting with others along the way,” writes Roy. “About six seconds of that same audio was played at Beyoncé’s performances of the Song during the ‘Formation World Tour.'”
Roy argues the minimal and transformative use of the clips falls within the protection of the fair-use doctrine — but the defendants don’t need it because the music video producer licensed the work.
“While beyond the scope of this motion, Pretty Bird licensed the YouTube Videos from Mr. Barré’s family before plaintiff Angel Barré had herself appointed as the administrator of the Estate of Anthony Barré weeks after the Music Video’s premiere — presumably for the purpose of bringing this action,” writes Roy.
The motion also seeks to remove all defendants who aren’t involved with the music video or live performances. So, in the event that any claims survive the motion to dismiss, only Beyoncé, Sony, director Melina Matsoukas and Pretty Bird Pictures would remain involved.
Alonzo Wickers and Nicolas Jampol of Davis Wright Tremaine are also representing the defendants in this suit. The motion to dismiss can be read in full on THR.com.
This article was originally published by The Hollywood Reporter.