By Palak V Patel
Palak@jayaramlaw.com
In 2017, Jessica Chiha, through her company, The Little Homie, raised money through a kickstarter to publish “A B to Jay-Z,” a book that uses the name, image, and lyrics of various artists to teach the alphabet. Chiha features artists like Biggie Smalls, Outkast, and Snoop Dog. The book gained a lot of popularity after its publication. Chiha has since expanded the concept into coloring books and t-shirts. But, it is her reference to Jay-Z that has caused the biggest problem.
Shawn Carter, more commonly known as Jay-Z, filed suit against Chiha alleging that she infringed upon his copyrights and registered trademarks while misappropriating the use of his likeliness. Specifically, Jay-Z alleges that Chiha uses his name, likeness, and references to “99 Problems” extensively. Furthermore, Jay-z alleges that the book is “a deliberate and knowing attempt to trade off the reputation and goodwill’ of the rapper, and uses his intellectual property ‘for their own commercial gain.’”
While the matter is still proceeding through to the legal system, Chiha and The Little Homie are likely to rely on the doctrine of fair use to overcome allegations of copyright infringement. While copyright holders usually have extensive rights over their work, others can use their work without authorization if it is considered fair use. In considering whether an unauthorized use is fair, courts will consider: 1) the purpose of the use; 2) nature of the use; 3) amount of copyrighted material used; and, 4) the effect on the potential market for the copyrighted work.
Chiha will likely argue that her use of is fair because the book is a parody or satire of Jay-Z’s “99 Problems.” But, simply making fun of the original work is not enough to defend against copyright infringement. In order to prove that the work is a parody or satire, Chiha will have to prove that the use of the copyrighted work is a part of some commentary on the material or some broader aspect of society.
More importantly, in arguing fair use, Chiha will have to overcome the fact that her work is commercial. Chiha published the book for monetary gain. This factor weighs heavily against any potential defense of fair use. Courts are more likely to afford fair use protection to works that are meant to be reporting the news, educational in nature, or a criticism of work. While teaching the alphabet can arguably be considered educational, the commercial nature of the book weighs more heavily. In contrast, many law professors use lyrics from “99 Problems” to teach students about Fourth Amendment protection. In that context, any use of the copyrighted lyrics would be fair use since the purpose is educational and noncommercial.
Chiha will likely face an uphill battle to show that her use of “99 Problems” was fair. But, the case is still unfolding and law on fair use is constantly evolving. We’ll have to wait and see whether the Court holds that Chiha’s use is infringing.