Rapper Trefuego has been ordered to pay Sony Music more than $800,000 in damages after including an uncleared sample in a track that went viral on TikTok. However, the court declined to issue an injunction stopping the distribution or performance of the track, instead allowing the major to collect a share of any future revenue it generates.
It's an interesting case in a world where so many grassroots artists use uncleared samples in their tracks. In theory, the big damages bill sets a precedent that using uncleared samples, even in DIY releases, is very risky and therefore unwise.
However, the damages mainly relate to the money the track has already generated and there is still the potential for future income. So maybe you could argue that the 'infringe now, ask for forgiveness later' approach still has some merit. Except that the rapper has probably already spent the $686,418.41 in royalties that was paid out to him by distributor Distrokid.
Trefuego, real name Dantreal Clark-Rainbolt, sampled 'Reflections' by Japanese composer Toshifumi Hinata on his 2019 track '90mh'. After going viral on TikTok, it became super popular on Spotify.
Sony Music, which represents both the recording and song rights in 'Reflections', sued last year. By that point '90mh' had featured in over 155,000 videos on TikTok, had garnered 100 million streams on Spotify, and been viewed ten million times on YouTube.
It was very clear that 'Reflections' had been sampled without licence, making Sony's copyright infringement action pretty straightforward. The challenge proved to be tracking Clark-Rainbolt down. In the end the court allowed Sony to serve its legal papers via a direct message on Instagram. Even then, the rapper evaded communications and ignored court orders. As a result, the court ruled in Sony's favour in November.
The major then put in its claim for damages, seeking what Clark-Rainbolt had made and what the music company had lost as a result of the infringement. That came out at $802,997,23. This figure covered $152,599 in "lost licence fees" for both the recording and publishing rights in 'Reflections', plus the money generated by the track - on both the recording and publishing side - minus the licence fees.
At this point Clark-Rainbolt actually responded, albeit representing himself in the proceedings. He argued that his infringement had not been wilful, an argument that the judge said was "compelling", but alas not relevant.
If a copyright owner seeks so called statutory damages in a US infringement case, whether or not the infringement was wilful impacts how much money it can claim. But because Sony was requesting actual damages - based on actual gain and loss - whether or not Clark-Rainbolt wilfully infringement the 'Reflections' copyright was not a factor.
Sony also wanted an injunction stopping Clark-Rainbolt from distributing or performing '90mh' in the future. If the rapper failed to comply with that injunction, it added, he should pay 50% of any publishing income and 20% of any recording income to the major.
Interestingly, the judge declined to issue the injunction stopping future distribution and performance, on the basis that an injunction is only appropriate if the conduct being prohibited would cause irreparable harm. The fact that Sony had already set out a framework for future compensation meant any harm caused by the continued distribution and performance of '90mh' was clearly not irreparable.
As a result, the injunction issued by the court, confirming the revenue share splits proposed by Sony, basically operates as a kind of licensing agreement. Which is what Clark-Rainbolt needed in the first place, but probably wouldn't have been in a position to negotiate back in 2019. Although, of course, by going the unlicensed release route, the rapper loses all the money made to date by his recording.
A big challenge for grassroots artists who use samples in their music is that copyright law is clear that all samples must be cleared with the relevant copyright owners before release. However, even if the artist understands the copyright rules and licensing processes, the chances are they would struggle to secure licences because of the upfront fees that are charged, especially on the recordings side.
As part of the process for calculating damages, Sony had to set out what a hypothetical licensing deal might have looked like had one been agreed before the release of '90mh'. It stated, “Sony Music would have required an up-front $10,000 payment plus 20% of revenues, and Sony Music Publishing would have required an upfront $2500 payment plus 50% ownership in the copyright to the ‘90mh’ musical composition".
For grassroots artists who could never afford those upfront fees, the obvious solution is for a copyright owner to negotiate a bigger cut down the line or to recoup the fees out of the artist's share of future income. However, given that the majority of tracks being made by grassroots artists probably won't generate much future income, can the record label or music publisher justify the upfront admin on the promise of money that may never materialise?
So, what do the grassroots artists do? Usually sample without licence and hope that, on the off chance they score a viral hit, some kind of retrospective deal can be done. Maybe that's what would have happened had Clark-Rainbolt not resisted Sony's approaches before it went legal. Would he have got a better outcome that way? Probably.