Kanye West and Kid Cudi‘s Kids See Ghosts collaborative project has filed a legal response to copyright infringement claims over the 2018 song “Freeee (Ghost Town Pt. 2),” according to documents filed on Monday in U.S. District Court in California.
The original lawsuit, filed in March by actor Ronald Oslin Bobb-Semple, accused the duo and their collaborators of using an unauthorized sample of his 2002 vocal recording “The Spirit of Marcus Garvey (Garvey speaks to an all-Black audience)” on the track, thereby depriving him of rightful credit and compensation. Bobb-Semple claimed that the sample, which is heard in the track’s first 15 seconds, was “the seed from which the entire song grows” and did not fall under the fair use exception to copyright.
In his suit, Bobb-Semple is seeking damages and his share of royalties from the song’s past and future exploitation. He is also asking for credit as a producer and performer for all “future reproduction, distribution, sale, public performance, or other use or exploitation” of the track.
In their response, West, Cudi and their co-defendants — namely Tyrone William Griffin Jr. (Ty Dolla $ign), Andrew Clarke (Andy C.), Jeff Bhasker, Mike Dean, Andrew Dawson, Bryan Migal Attmore (BoogzDaBeast), Getting Out Our Dreams, Inc., Def Jam Recordings and Universal Music Group — deny Bobb-Semple’s infringement claim, stating their use of the sample in fact does fall under fair use. They also argue that even if they infringed the copyright (“which…Defendants do not concede”), their actions were “innocent and non-willful” and that moreoever Bobb-Semple has failed to provide any facts supporting their alleged willfulness.
Fair use is generally defined as the right to copy a portion of a copyrighted work without permission if it is for a limited purpose, such as educational use or to comment upon or parody the work being sampled. Courts generally look for three factors in making a determination of fair use, including how much of the original work was used, whether it was transformed and whether it caused significant financial harm to the copyright owner.
In terms of music, some courts have applied fair use to the musical composition copyright only, not to the sound recording copyright (often referred to as the “master”). Under U.S. copyright law, the musical composition and sound recording copyright are considered two separate works.
In the defendants’ response to Bobb-Semple’s suit, they further claim the actor’s original complaint is “barred by the First Amendment to the United States Constitution.” They also accuse him of misuse of copyright, which is broadly defined as an unfair claim by a copyright holder to “rights broader than those granted by the copyright itself.”
Bobb-Semple is described in his suit as an actor who “performs a 45-minute one-man cultural and educational presentation” based on the life of Marcus Mosiah Garvey, a Jamaican-born political activist and orator who founded the Universal Negro Improvement Association and African Communities League.