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What You Really Need to Know About Lord Finesse Suing Mac Miller for $10 MillionPosted by Nathan S. on 07/14/12 | Filed under Features, Opinion, Mac Miller
Sweet baby jesus knows I'm not a lawyer, if ITT Tech opened up a law school I doubt I would even get accepted, but since this cases like this are only going to become more common, I'm taking a shot at breaking it down. Anyone with more knowledge than me, and I hope there are a lot of you, should feel free to chime in.
What is Mac Miller Getting Sued For?
Miller's used almost all of Lord Finesse's "Hip 2 Da Game" instrumental for his "Kool Aid & Pizza video, the song from his "KIDS" mixtape that proved to be his first real large scale hit. Technically, Finesse is suing for copyright infringement, unfair competition, unjust enrichment, interference, deceptive trade practices, and a permanent injunction.
In normal speak, Finesse is saying that Mac made money off "Kool Aid & Pizza", Finesse wasn't paid for the use of "Hip 2 Da Game" nor was he officially credited, and he wants to permanently stop Mac from using the song again (at least until an agreement is worked out).
Is Lord Finesse Right to Sue Mac?
You mean legally, or morally? Well...it's complicated either way, but let's start with technically/legally.
A lot of rappers are under the mistaken assumption that if they don't sell a song they're immune from a law suit. Wrong - in practical terms there's no such thing as immunity from a law suit in any field in the U.S. Someone can sue you for just about anything. The law suit might be frivolous and you might win, but you're still going to have to go to court and pay legal fees to win.
So in reality, any artist/copyright holder could sue a rapper for not clearing a sample, even if the song's not for sale. 99% of the time no one bothers because it would cost more to file the lawsuit than they could possibly make. Even if the case went to court and the artist/copyright holder won, which isn't a guarantee, the court might rule that the artist is owed 25% of all proceeds earned from the song. The broke rapper says fine, considering YouTube views/live shows/etc. I made $10 directly off this song, here's your $2.50. Practically speaking, no one's going to spend their time and money to get $2.50 from a random rapper.
That math obviously changes though when those numbers get bigger. Now that Mac's raked in a few million YouTube views, dropped a #1 album and is regularly doing sold out tours, suddenly it's no longer a waste of time to sue him.
On one hand you could look at this as "mo money, mo problems", and you'd be right. On the other hand, you could look at it as "you were doing something illegal and you were only getting away with it because you were broke. Now that you're rich, the free ride is over. Welcome to the big leagues." Simply put, getting sued is an unofficial tax rich people pay.
Morally? Well, that's complicated too.
There's not exactly a retirement plan for rappers, and often the rapper and producers who paved the way for Mac Miller to even make money in the first place find themselves near broke and looking at turning 50-years-old without anything in the bank.
For the record, I have no idea what Lord Finesse's personal finances are like or what's going on in his head, but I can picture being him and thinking, "This kid's eating off of my work. I personally like him, but is Mac Miller going to pay for my medical bills when I'm 70? I feel bad about suing, I'm not the kind of guy who just goes around suing folks, but at the very least I do have some legal basis to stand on. If it comes down to Mac Miller personally liking me versus making sure my family is financially secure for generations, I'm picking my family."
That doesn't make Lord Finesse right, but it certainly doesn't make him wrong either.
Has Mac Miller Made Money off "Kool Aid & Pizza"?
Copyright cases like this are almost never black and white. By their very nature they're all about the grey area and percentages. So if you're only considering revenue from single or album sales the easy answer to the question above is no. But as we all know, music sales are only a small portion of what makes up an artist's income in 2012.
First off, it's important to note that weren't not just talking about a "sample" here. Mac essentially took the entirety of "Hip 2 The Game", didn't change it, and rhymed over it. That gives Finesse a lot of leverage - if Mac grabbed just the snare from "Hip 2 Da Game", it's hard for Finesse to argue that his work was an essential part of "Kool Aid & Pizzas" success. But since Mac barely changed the original, Finesse can pretty validly say "anyone who likes this song likes it because of my work." Now instead of Finesse deserving 2% of a song's revenue because that was his snare, we're talking more like 50%*.
So, let's forget about direct sales for a minute. We know that Mac Miller's been touring like crazy. That $10 million number than Finesse came up with is based more on something like:
* Mac Miller makes $10K a show.
* He earns that $10K a show because people pay money to hear him perform certain songs. Without those songs, no one would pay money to see him.
* One of the songs that people pay to see him perform live is "Kool Aid & Pizza".
* Mac Miller usually performs 15 songs a show, one of which is "Kool Aid & Pizza".
* I should get a percentage (50%, see above) of 1/15 of the money he made from every show.
A percentage of 1/15 may not seem like a lot, but multiply the 200 shows Mac did in 2011 alone by $10K a show and that shit adds up fast. And then there's a more indirect argument that goes something like, "If people hadn't heard 'Kool Aid & Pizza' they wouldn't have downloaded 'Kids', and if they hadn't downloaded 'Kids' they wouldn't have bought 'Blue Slide Park'. I deserve a portion of the money made from 'Blue Slide Park'.
It's a hard argument to make, but also a hard argument to completely disprove. To return to our original premise, a court may end up ruling "fine, you deserve 0.25% of the money Mac Miller made in 2011."
It's a tiny percentage, and not worth suing anyone over...unless they did some serious numbers...like Mac did. So when you start to look at the money that Mac and Rostrum Records made off album sales/touring/merch/publishing/etc., suddenly even 0.25% of all that money starts to look pretty lucrative. You know, like maybe $10 lucrative.
Will This Change the Hip-Hop Mixtape/Free Album Game?:
In short, not really.
As an artist it's obviously a good idea to never use sampled music if you can help it. As soon as you do, you open the Pandora's Box/giant fucking headache I laid just laid out above - and that's the overly simplified version. But if you're a random rapper and you really want to use that sample, know you're taking a risk, but it isn't a big one. Frankly, the odds of you having enough money to make any lawsuit worth someone's time.
But if you do blow the fuck up, it might be a good idea to be proactive and reach back out to folks to retroactively clear any samples. (Ex., Drake had to go back and clear every sample on the originally free "So Far Gone.") But even then, it might not make sense. Let's say there's a 10% chance someone's going to sue you off a mixtape track, and even if you do get sued, that'll mean you're making enough money for a lawsuit to not really hurt you that much.
So the vast majority of the time artists, even the ones on the verge of blowing up, figure fuck it, I'll take the chance that I'll lose a small percentage of money versus the guarantee that I'll lose money by clearing these samples.
Side Note: Finesse is also suing DatPiff, which released the "Kids" mixtape. That's one portion of the case I pretty much guarantee he'll lose. Under the DMCA websites like DatPiff/YouTube/etc. are protected under a clause that goes something like "We didn't upload that shit, Mac Miller did. If he uploaded illegal shit to our servers, that's on him, not us. We can't be reasonably expected to check the copyright clearances on every song every artist uploads."
None of the actual figures - percentages, revenues, etc. - are even remotely accurate. I haven't seen the lawsuit, I have no idea what the numbers really are. I'm simply picking easy numbers to try to get across a general principle.
And with that, feel free to hit me with in the comment section with any questions and additional information/insight you can throw on the subject. And with that, I've done enough thinking to last the rest of the day. If you'll excuse me, I'm doing to go look at Rosa Acosta for a minute to unwind.
See Also: Counterpoint: Frank Ocean’s Kinda Being a Dick About The Eagles & “American Wedding”