CHICAGO (CN) – Rap group Cypress Hill may have finally heard the last of an R&B artist who wanted $29 million because a 2 1/2-second clip of his song was featured in the groundbreaking 1993 triple-platinum rap album “Black Sunday.”
Syl Johnson, an American blues and soul singer, wrote “Is It Because I’m Black” in 1968 with help from two other artists. Once released the following year by Twinnight Records, the song quickly reached No. 11 on the R&B charts. Johnson recorded a solo version in 1972, but that version never made it into a compilation copyright Johnson obtained 1997.
Glenn Watts, one of the collaborators, copyrighted the words and music of the song in 2003, listing Johnson on the copyright as well.
In 1993, rap group Cypress Hill played a short clip of the song “looped” for 77 seconds, as background for a track titled “Interlude.” Cypress Hill paid the owner of Twinnight Records $25,000 to release the group from all claims related to the song.
Johnson filed suit in 2003 asking for what the 7th Circuit called “a staggering” $29 million in relief.
Lawrence Muggerud, the member of Cypress Hill who created “Interlude,” testified that he came across and used Twinnight Records’ version of the song. Muggerud argued that the song was fair game, as the Copyright Act does not offer protection to sound recording fixed before 1972.
Four years into the litigation, Johnson asked to amend his complaint to include common-law misappropriation and infringement of his and Watts’ 2003 copyright. U.S. District Judge Charles Norgle denied the request because of the “substantial prejudice” that such a delayed introduction of an amendment would cause.
Norgle then granted summary judgment to Cypress Hill because the 1969 recording was not protected and because Johnson’s 1972 copyright did not include any version of the song. He also granted Cypress Hill $332,000 in attorneys’ fees and costs.
In 2008, Johnson filed another claim, reasserting his misappropriation claim. But the court dismissed this claim as barred by the doctrine of res judicata.
On appeal, the 7th Circuit summarily rejected Johnson’s arguments and affirmed the judgment and award of attorneys’ fees for Cypress Hill.
Writing for a three-member panel, Judge Terence Evans applauded the lower court’s decision. “Here, the facts in both claims are unquestionably identical,” Evans wrote, adding that “the judge correctly granted Cypress Hill’s motion to dismiss.”