On Oct. 4, 2019, Don Lee and Glen Keith DeMeritt III, two Atlanta based producers (collectively, Lee), sued Lil Nas X, Cardi B, their label Sony Music, and others. Lee asserts that Lil Nas X and Card B’s hit song “Rodeo” infringes the copyright to Merritt and Lee’s recording called “gwenXdonlee4-142.” According to the Complaint, filed in the Southern District of New York, the copyrighted work consists of “Plaintiffs’ hip-original content, including drum patterns and bass lines with melodic lines and harmonies in unique and compelling ways.” Lee then marketed the hip-hop work for use by others in the Atlanta hip-hop scene and beyond….The Work was subsequently incorporated into the song Broad Day by PuertoReefa and Sakrite Duexe.” Lee alleges that Lil Nas X, Cardi B, and their label Sony Music Entertainment copied a substantial amount of Lee’s work and used it in their hit “Rodeo.”

The test of infringement in the Second Circuit (where the case is filed) comes from Arnstein v. Porter. To state a claim for infringement, Don Lee must prove that (1) the Defendants copied original expressions from Lee’s work and (2) the Defendants’ copying constituted misappropriation based on proof of substantial similarities between the Lee’s work and “Rodeo.” To show that the Defendants copied Lee’s work he must offer direct evidence that they copied, or circumstantial evidence that they had reasonable access through the Lee’s work and similarities between the two works.

• Lee’s Alleged Circumstantial Evidence of Copying. The Complaint alleges that defendants had access to the work based on the following: “Before the infringement at issue, this song was performed, published, and distributed widely, including without limitation in and around the Atlanta hip-hop scene.” The Complaint also alleges that “Plaintiffs marketed and distributed the Work to numerous participants in and beyond the Atlanta music scene.” In addition, the Complaint asserts that the two works are strikingly similar, which raises an inference that the defendant copied Lee’s work. The allegations of access are rather vague. They don’t identify how the defendants accessed Lee’s work specifically or attempt to quantify the amount of distribution. As of March 6, 2020, the YouTube video of “Broad Day” which had the Lee musical element has only 136,578 views, so the number was probably even less at the time “Rodeo” was created in 2019. Access may be the key issue in this case.

• Lee’s Alleged Proof of Substantial Similarity and Misappropriation. Lee claims that “Rodeo” is substantially similar to Lee’s work. Borrowing the “constellation” language of the musicologist for the Gaye estate in Williams v. Gaye, the Complaint alleges: “the two works at issue employ a number of substantially similar elements and material which constitute a constellation of elements creating a substantially similar overall sound and feel.”

• According to Lee’s complaint the musical analysis indicates 8 similarities:
  • (21a) Both works have a four-measure phrase outlining the chord progression E, F, G, F, E.
  • (21b) The rhythm of the chord changes in both works is a whole note, whole note, half note, half note, whole note.
  • (21c) Both works incorporate the same uncommon scale and key in popular music
  • (21d) Both works are in 4/4 time at a temp of 142 beats per minute.
  • (21e) Both works use guitar and wind instruments to evoke a certain aesthetic that is set against hip-hop elements derived from digital drum and base elements.
  • (21f) Both works use a drum figure which heavily emphasize triplet figures in the hi-hats
  • (21g) Both works have a static chord progression with structural elements dictated by the removal of drums or introduction to supplemental melodic lines.
  • (21h) Finally, both works have a rhythmic guitar part outlining chords which is replaced with a single note line playing an ascending then descending scale moving with the chord changes.

Answer: Lil Nas X, Cardi B, and Sony deny the allegations of infringement. They deny accessing or copying the work, and assert they independently created “Rodeo.” They also assert that “the musical
elements from gwenXdonlee4-142 supposedly used in Rodeo are neither original to Plaintiffs nor
copyrightable subject matter.” They also include a fair use defense (it’s common to raise alternative defenses in the Answer to a complaint to avoid waiving them).

What’s at Stake. The complaint does not allege a specific amount, but due to “Rodeo’s” success (peaked at No. 5 on the Billboard chart), the potential damages at stake could be significant if infringement is proven. Lil Nas X and Cardi B are prominent, high-profile artists in the hip-hop space, which will also bring media attention to this case.

Songs

Broad Day containing musical element by Don Lee and Glen Keith Meritt III

Rodeo by Lil Nas X and Cardi B

Documents

Complaint (Oct. 4, 2019)

Answer by Lil Nas X (Feb. 4, 2020)

Answer by Sony

Attorneys

Scott Alan Burroughs for Don Lee

Peter Anderson and Adam Rich for Lil Nas X, and defendant Sony