mahan

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

CHAUNCEY MAHAN

Petitioner, vs. ROC NATION, LLC, ROC-A-FELLA RECORDS, LLC, SHAWN CARTER p/k/a “JAY Z” Respondents.

Case No. 14-cv-5075 (LGS)

JUDGE SCHOFIELD

ECF CASE

PETITION FOR DECLARATORY JUDGMENT COMES NOW the Petitioner, CHAUNCEY M. MAHAN, a citizen of the

United States of America, by and through his counsel, James H.

Freeman, Esq. of JH FREEMAN LAW, 3 Columbus Circle, Floor 15, New

York, NY 10019; to seek a declaration of his ownership and authorship

rights under the Copyright Act of 1976, 17 U.S.C. § 1 et seq., vis-à-vis

the Respondents ROC NATION, LLC, a Delaware limited liability company

registered to do business in the State of New York; ROC-A-FELLA, LLC, a

Delaware limited liability company registered to do business in the State

of New York; SHAWN C. CARTER p/k/a “JAY Z, a citizen of the State of

New York; and alleges as follows:

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INTRODUCTION

“Modern music owes a great debt to the behind-the-studio-glass magicians.” – Alan Parsons, A HISTORY OF RECORD PRODUCTION 17 (1998). “There’s definitely a big difference between a beatmaker and a producer because once you finish the beat, you have to produce the record.” – Dr. Dre, Something from Nothing: Art of Rap (2012)

Petitioner Chauncey Mahan (“Petitioner”) is a Grammy-award

recognized producer and engineer of sound recordings. His work is

embodied on albums released by the respondent Roc-A-Fella Records,

including Jay Z – Vol. 3…Life and Times of S. Carter (1999); Jay Z – The

Dynasty: Roc La Familia: (2000); and Beanie Sigel – The Truth (2000).

Count I of the Petition respectfully seeks a declaratory judgment

from the Honorable Court pursuant to 28 U.S.C. §§ 2201, 2202 declaring

Petitioner to be a joint copyright owner and author of forty-five (45)

published sound recordings, plus numerous unpublished copyrightable

materials that are currently in possession of the Los Angeles police

department. In the alternative, Petitioner seeks a declaration, upon good

cause shown, that he is the sole owner of the subject sound recordings.

Count II seeks a declaration that Roc-A-Fella’s underlying SR

Copyrights identified in this Petition are invalid as a matter of statutory

law and therefore have no legal effect. The registration forms are

defective on their face, inter alia, for claiming to be “employer-for-hire”

where no employment relationship existed between the label and authors

and no copyright assignment agreement was signed by Petitioner.

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TABLE OF CONTENTS

A. SUBJECT MATTER JURISDICTION ............................................................................................. 1 B. PERSONAL JURISDICTION ................................................................................................................ 1 C. VENUE ............................................................................................................................................................... 2 PARTIES A. CHAUNCEY M. MAHAN .......................................................................... 2 B. ROC-A-FELLA RECORDS, LLC ............................................................... 4 C. ROC NATION LLC ................................................................................... 5 D. SHAWN CARTER P/K/A “JAY Z” .............................................................. 6

PART I: THE RELEVANT SOUND RECORDINGS ............................................................ 7 A. GENESIS OF THE JOINT COLLABORATION ............................................ 7

(1) Mr. Mahan’s Special Expertise ............................................................................................................ 7 (2) Roc-‐A-‐Fella’s Album Releases Prior to Mr. Mahan’s Collaboration

w/ Jay Z (1996-‐1998) ............................................................................................................................. 8 (3) Roc-‐A-‐Fella and Mr. Carter Invite Mr. Mahan to Collaborate

on the Making of Sound Recordings (July-‐August 1999) ........................................................ 9 (4) Petitioner Sets Up Sessions at Sony Studios NYC ...................................................................... 11

B. PUBLISHED MATERIALS ...................................................................... 12

(1) Jay Z -‐ Vol. 3 . . . Life and Times of S. Carter (1999) ................................................................. 12 (2) Jay Z -‐ Roc La Familia: Dynasty (2000) ....................................................................................... 14 (3) Beanie Siegel – The Truth (2000) ................................................................................................... 16 (4) Aggregate of Published Sound Recordings ................................................................................. 17

C. UNPUBLISHED MATERIALS ................................................................. 17 PART II: SR COPYRIGHT REGISTRATIONS ................................................................... 27 A. “EMPLOYER-FOR-HIRE” REGISTRATIONS (1999-2000) ................................. 27

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B. ROC-A-FELLA’S REPORTED COPYRIGHT ASSIGNMENT (2004) ........................ 27

PART III: PRESENT OWNERSHIP DISPUTE ................................................................... 30 A. PETITIONER’S CUSTODY OF TANGIBLE SOUND RECORDINGS ......................... 30

(1) Mr. Mahan’s Physical Possession & Custody of Multi-‐Track (Pro Tools)

and Two-‐Track (DAT) Sound Recordings for 15 years .......................................................... 30 (2) Respondents’ Long-‐Term Knowledge of Petitioner’s Custody &

Possession of All Unpublished Sound Recordings ..................................................................... 30 B. RESONDENTS’ EXPRESS RENUNICATION OF PETITIONER’S OWNERSHIP AND

AUTHORSHIP RIGHTS ................................................................................. 32 (1) Respondent Roc Nation’s False Criminal Charges Against

Petitioner (April 18, 2014) ................................................................................................................. 32 (2) Roc Nation’s Voluntary Withdrawal of “Extortion” Complaint

Three Weeks After Filing Charges (May 14, 2014) ................................................................ 34

PART IV: ORIGINS OF HIP-HOP SOUND PRODUCTION ............................................ 35 A. JAMAICAN “DUB” MUSIC (1967 - 1973) ................................................ 35

(1) The Invention of the “Sound System” ............................................................................................. 35 (2) Dubplates as a New “Version” Based on Isolated Drum Tracks ......................................... 36 (3) The Sound Engineer as Musical Composer and Producer .................................................... 37

B. BRONX - NYC: THE BIRTH OF HIP-HOP (1974-1979) ........................... 39

(1) DJ Kool Herc .............................................................................................................................................. 39 (2) Grandmaster Flash ................................................................................................................................ 40 (3) Afrika Bambaataa ................................................................................................................................. 41

PART V: AFRICAN-DERIVED MUSICAL AESTHETICS ............................................. 42 A. PERFORMANCE VALUES ..................................................................... 42

(1) Participatory Collaboration .............................................................................................................. 42 (2) Music-‐Making Roles ............................................................................................................................. 43

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(3) Improvisation ........................................................................................................................................... 44 (4) Unique Style .............................................................................................................................................. 44 (5) Choreographic Dialogue ..................................................................................................................... 45

B. SONIC ATTRIBUTES ............................................................................. 45

(1) Rhythm as the Vital Force .................................................................................................................. 45 (2) Kaleidoscopic Soundscapes ................................................................................................................ 46 (3) Timbral Diversity .................................................................................................................................... 47 (4) Deep Low-‐End Frequencies ................................................................................................................ 48

PART VI: HIP-HOP’S TRANSITION TO THE RECORDING STUDIO .................. 49 A. CLASSIC DEFINITIONS OF “PRODUCER” VS. “ENGINEER” ................... 49

(1) “Record Producer” ................................................................................................................................. 49 (2) “Sound Engineer” ................................................................................................................................... 50

B. FROM HIP-HOP DJ TO “PRODUCER” .................................................... 50

(1) DJ’s: Mastering Science to Express Art (1970’s) ....................................................................... 50 (2) The Birth of “Rap Music” (1979) .................................................................................................... 51 (3) Acquiring Tools of the Trade (Early 1980’s) .............................................................................. 52 (4) Building the “Lab” (mid-‐1980’s) ...................................................................................................... 53 (5) Claiming the Title of “Producer” (late 1980’s) .......................................................................... 53 (6) Bifurcating the DJ’s Original Role (early 1990’s) ..................................................................... 53

C. ENTER THE “STUDIO MAGICIANS” ...................................................... 56

(1) The Hip-‐Hop Engineer .......................................................................................................................... 56 (2) The Programmer .................................................................................................................................... 58

PART VII: PETITIONER’S CONTRIBUTIONS .................................................................. 59 A. OVERVIEW .......................................................................................... 59

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(1) Petitioner’s Control Over the Final Sound ................................................................................... 59 (2) Complete Absence of the Beatmaker ............................................................................................. 60 (3) Moderate Input from the Rappers .................................................................................................. 61

B. MULTI-TRACKING THE BEAT ............................................................... 61 C. PRE-MIXING ........................................................................................ 62 D. EDITING THE BEAT ............................................................................. 62 E. RECORDING VOCALS .......................................................................... 63 F. COMPOSITING VOCALS ....................................................................... 65 G. MIXING ................................................................................................ 66 H. SONG ARRANGEMENT OR STRUCTURE .............................................. 69 I. PRE-MASTERING ................................................................................. 70 J. “DUMPING” .......................................................................................... 70

COUNT I: DECLARATORY JUDGMENT .............................................................................. 71 A. PETITIONER’S STANDING .................................................................... 71

(1) Copyright Ownership & Authorship ............................................................................................... 71 (2) The Engineer or Producer is a “Classic Joint Author” of Sound Recordings ................. 72

B. DECLARATION SOUGHT: JOINT AUTHORSHIP & OWNERSHIP ............ 74

(1) Mr. Mahan’s Contributions – Published Materials ................................................................... 74 (2) Mr. Mahan’s Contributions – Unpublished Materials ............................................................. 75 (3) Mutual Intent of the Individual Parties ........................................................................................ 75

C. ALTERNATIVE DECLARATION: SOLE OWNERSHIP .............................. 80

COUNT II: DECLARATORY JUDGMENT ............................................................................. 81 A. PETITIONER’S STANDING .................................................................... 81 B. DECLARATION SOUGHT – INVALID SR COPYRIGHTS [SCHEDULE C] ........ 81

PRAYER FOR RELIEF .................................................................................................................. 83

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SCHEDULE

OF EXHIBITS

EX. DESCRIPTION DATE

A Chauncey Mahan’s RIAA-certified recording plaque to commemorate 17x multi-platinum sales of THE

BODYGUARD soundtrack (1992) featuring Whitney Houston’s I Am Every Woman, Chauncey Mahan’s Grammy Award certificate for engineering/programming re: THE BODYGUARD soundtrack (1992) featuring Whitney Houston’s I Am Every Woman.

1993

B Chauncey Mahan’s Grammy Award certificate for engineering a sound recording embodied on the album MR. SMITH (1996) featuring rapper LL Cool J.

1996

C Chauncey Mahan’s Grammy Award certificates for producing, engineering and programming certain sound recordings embodied on LIFE AND TIMES OF S. CARTER…VOL. 3 (1999) featuring rap artist Jay Z et. al.

1999

D Credit billings (various sources) re: LIFE AND TIMES

OF S. CARTER…VOL. 3 (1999) featuring rap artist Jay Z et. al.

1999

E Credit billings (various sources) re: ROC LA FAMILIA: THE DYNASTY (2000) featuring Roc-A-Fella rap artist Jay Z et. al.

2000

F Credit billings (various sources) re: THE TRUTH

(2000) featuring Roc-A-Fella rap artist Beanie Sigel, et. al.

2000

G U.S. Copyright registrations (various SR) for sound recordings embodying the original contributions of Chauncey Mahan

1999-2000

H Jeff Chang w/ Introduction by DJ Kool Herc, CAN’T STOP, WON’T STOP: A HISTORY OF THE HIP-HOP

GENERATION, Picador / St. Martin’s Press (New York 2005) [relevant pages only]

2005

I Joseph G. Schloss, FOUNDATION: B-BOYS, B-GIRLS, AND HIP-HOP CULTURE IN NEW YORK, Oxford University Press (New York 2009) [relevant pages only]

2009

J Joseph G. Schloss, MAKING BEATS: THE ART OF

SAMPLE-BASED HIP-HOP, Wesleyan University Press (Middletown, CT 2009) [relevant pages only]

2004

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EX. DESCRIPTION DATE K Daniel J. Levitin, THIS IS YOUR BRAIN ON MUSIC:

THE SCIENCE OF A HUMAN OBSESSION, Plume / Penguin Books, Ltd. (London 2007) [relevant pages only]

2006

L John Miller Chernoff, AFRICAN RHYTHM AND

AFRICAN SENSIBILITY: AESTHETICS AND SOCIAL ACTION IN

AFRICAN MUSICAL IDIOMS, University of Chicago Press (Chicago 1979) [relevant pages only]

1979

M George Lipsitz, DANGEROUS CROSSROADS: POPULAR

MUSIC, POSTMODERNISM AND THE POETICS OF PLACE, Verso (London 1994) [relevant pages only]

1994

N Marcyliena Morgan & Dionne Bennett, Hip-Hop & the Global Imprint of a Black Cultural Form, AMERICAN

ACADEMY OF ARTS & SCIENCES (2011) [relevant pages only]

2011

O Shawn Carter, JAY Z DECODED, Spiegel & Grau (New York 2010) [relevant pages only]

2010

P Jake Brown, JAY Z AND THE ROC-A-FELLA RECORDS

DYNASTY, Colossus Books (New York 2005) [relevant pages only]

2005

Q SOMETHING FROM NOTHING: THE ART OF RAP (2012) [DVD Cover]

2012

R Zack O’Malley, Jay Z’s New Publishing Deal is Just the Beginning, www.Forbes.com, February 20, 2013

2014

S WIKIPEDIA definition of “Programming (Music)” 5/2/2014

T LAPD Receipt for Property Taken Into Custody 4/18/2014

U Internet Articles (various) LAPD Kills Extortion Investigation Over $20 Mil Masters, TMZ.com; Police Drop Jay Z $20 Million Master Tapes Extortion Investigation, MTV.com

5/14/2014

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JURISDICTION AND VENUE

A. SUBJECT MATTER JURISDICTION

1. The Court has original jurisdiction pursuant to the

DECLARATORY JUDGMENT ACT, 28 U.S.C. §§ 2201, 2202; 28 U.S.C. 1338(a);

and under the COPYRIGHT ACT OF 1976, 17 U.S.C. §§ 101, et seq.

B. PERSONAL JURISDICTION

2. Respondent ROC NATION LLC (“Roc Nation”) is a limited

liability company organized under the laws of the State of Delaware and

is registered to do business in the State of New York. The Court has

personal jurisdiction over Roc Nation because it regularly and

continuously transacts business within this Judicial District and

maintains its principal offices here.

3. Respondent ROC-A-FELLA RECORDS, LLC (“Roc-A-Fella”) is

a limited liability company organized under the laws of the State of New

York. The Court has personal jurisdiction over Roc-A-Fella because it

regularly and continuously transacts business within this Judicial

District and maintains its principal offices here.

4. Respondent SHAWN C. CARTER p/k/a “JAY Z” (“Carter” or

“Jay Z”) is a citizen of the State of New York who maintains his primary

residence within this Judicial District and is therefore subject to the

Court’s personal jurisdiction.

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C. VENUE

5. Venue is proper under 28 U.S.C. §§ 1391(b) and (c) in this

case because the named Respondents transact business in this Judicial

District and a substantial part of the events or omissions giving rise to

Petitioner’s requests for declaratory judgment and relief took place within

this Judicial District.

PARTIES

A. CHAUNCEY M. MAHAN

6. Petitioner Chauncey M. Mahan is a professional record

producer, sound engineer, music composer, arranger, mixer and

programmer.

(1) Formal Education & Training

7. In 1982, Petitioner studied musical composition at Brooklyn

College in New York City.

8. In 1985, Petitioner graduated from Mannes College of Music,

the New School’s music conservatory in New York, where he majored in

musical composition & arranging.

9. In 1987, Petitioner received certification as a sound engineer

from the Center for the Media Arts in New York City.

(2) Recording Industry Experience

10. Petitioner was actively engaged in the professional recording

industry from 1987 through 2002. During this period, Mr. Mahan

collaborated with chart-topping, major label recording artists in the

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popular genres of hip-hop, R&B, dancehall and house / dance music,

including Whitney Houston, Chaka Khan, LL Cool J, Kurtis Blow, Doug

E. Fresh, D-Nice, Beanie Man, Super Cat, Clives & Coles, Funkmaster

Flex, Notorious B.I.G., 112, Total, Da Brat, Missy Elliot, R Kelly, Debra

Cox, Christopher Williams, The Lox, Eve, Beanie Siegel, Memphis Bleek,

and Jay Z.

11. At all relevant times, Petitioner exhibited the advanced

technical skills and unique artistic sensibility required to collaborate

meaningfully in the co-authorship of professionally realized sound

recordings featuring chart-topping recording artists signed to major

record labels.

12. Petitioner’s subjective “ear” for what makes certain sound

recordings popular, particularly in the rhythmic genres of hip-hop,

house, dancehall, techno and electronica, was acquired over decades of

listening to music in nightclubs or on the radio, combined with extensive

formal training in musical composition and arrangement; a certified

degree in sound engineering; plus years of hands-on experience

controlling then-current state-of-the-art technology to create high-quality

sound recordings suitable for major label release.

(3) Grammy Award and RIAA Recognition

13. In 1993, Petitioner’s authorship contributions as a sound

engineer and programmer (i.e., musical composer, writer and arranger)

were recognized in connection with Whitney Houston’s smash hit I’m

4

Every Woman, which was featured on the original soundtrack for THE

BODYGUARD, a blockbuster motion picture released in 1992. The

soundtrack won the Grammy award for Album of the Year and was

certified as 17x multi-platinum by the Recording Industry Association of

America (“RIAA”). [see Exhibit A].

14. In 1996, Petitioner’s authorship contributions as a sound

engineer were again recognized by the National Academy of Recording

Arts and Sciences (“NARAS”) in connection with rapper LL Cool J’s

Grammy-award nominated album Mr. Smith. [see Exhibit B].

15. In 2000, Petitioner’s authorship contributions as a record

producer, sound engineer and music programmer were again recognized

by NARAS in connection with the Grammy-award nominated album Vol.

3 . . . Life and Times of S. Carter, featuring Jay Z as the principal rapper.

[see Exhibit C].

(4) Mr. Mahan’s Good Will in His Trade and Profession

16. At all relevant times (prior to April 18, 2014), Mr. Mahan

enjoyed good will in the professional recording industry; an upstanding

reputation amongst his colleagues; and well-earned recognition in the

trade for his advanced knowledge of state-of-the-art technology.

B. ROC-A-FELLA RECORDS, LLC

17. In 1995, Respondent Carter co-founded Roc-a-Fella as an

independent record label based in New York City. Roc-A-Fella marketed

recording artists in the genres of hip-hop music.

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18. In 1997, Def Jam Recordings reportedly acquired a 50%

ownership interest of Roc-A-Fella.

19. In 1998, Universal Music Group, Inc. (“UMG”) reportedly

purchased Def Jam Recordings and merged it with Island Records to

form the Island / Def Jam Music Group (“Def Jam”).

20. At all relevant times after UMG’s acquisition of Def Jam in

1998, Roc-A-Fella operated under the direct supervision and control of

UMG or Def Jam.

21. As of mid-1999, the roster of artists signed to Roc-a-Fella

included the rappers Jay Z, Beanie Sigel, Memphis Bleek, Amil, and

Freeway, as professionally known. (collectively referred to herein as the

“Roca-A-Fella Rappers”)

22. At times relevant to this matter, the hip-hop beatmakers

(credited as “producers”) who collaborated with Petitioner and others in

the making of sound recordings at issue included Timbaland, Swizz

Beats, Rockwilder, Just Blaze, DJ Clue, and Bink, as professionally

known.

C. ROC NATION LLC

23. In 2008, Respondent Carter founded Roc Nation. The

company is described on its website as a “full-service entertainment

company, inclusive of artist, songwriter, producer and engineer

management; music publishing; touring & merchandising; film and

television; new business ventures; and a music label.”

6

www.rocnation.com (accessed June 11, 2014).

D. SHAWN CARTER P/K/A “JAY Z”

24. Mr. Carter is a popular American rapper from Brooklyn, New

York who has enjoyed substantial success in the music, fashion and

entertainment industries.

25. At times relevant to this action, Mr. Carter was a principal of

Roc-A-Fella and was signed as a recording artist to Roc-A-Fella or Def

Jam or UMG.

26. Mr. Carter is a principal of Roc Nation.

[Next Page]

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PART I.

THE RELEVANT SOUND RECORDINGS

A. GENESIS OF THE JOINT COLLABORATION

(1) MR. MAHAN’S SPECIAL EXPERTISE

27. In or about 1996, Petitioner became an early adopter of a

digital audio workstation called Pro Tools, which is a computer software

program used for the professional multi-track recording, mixing and pre-

mastering of sound recordings.

28. In 1997, the manufacturer of Pro Tools, Avid Technology,

introduced a 24-bit, 48-track version of the software. It was at that point

that sound recording professionals began to migrate from more

conventional, hardware-based studio technology to the Pro Tools platform.

29. By 1998, Pro Tools had gained increased recognition in the

hip-hop, R&B, and dance/electronic genres for the software’s innovative

sound editing and arrangement capabilities. Major record labels,

including Def Jam, began to recruit sound engineers with professional

working knowledge of the Pro Tools platform.

30. By the time Petitioner began collaborating with Roc-A-Fella’s

roster of artists and beatmakers in mid-1999, Petitioner had acquired

advanced proficient with Pro Tools, on both Windows and Mac OSX

operating systems. At the time, Mr. Mahan’s expertise was regarded as

8

highly specialized, particularly because professional recording facilities,

including Sony Studios in New York, were either not equipped to operate

the Pro Tools digital platform or were in the early stages of (reluctantly)

transitioning to such technology. Accordingly, major record labels

including Def Jam relied on independent contractors, including Petitioner,

to supply the Pro Tools technology and provide the professional expertise

required to both operate the digital platform and interface it with other

devices then currently available in state-of-the-art recording studios.

31. To meet the growing demand for Pro Tools expertise,

Petitioner purchased his own then-current state-of-the-art computer

hardware and peripheral devices needed to operate the Pro Tools platform

in a professional recording environment.

(2) ROC-A-FELLA’S ALBUM RELEASES PRIOR TO MR. MAHAN’S

COLLABORATION W/ JAY Z (1996-1998)

32. On June 25, 1996, Roc-A-Fella released its first album

entitled Reasonable Doubt, featuring Jay Z as the principal recording

artist. The album peaked at #23 on the Billboard 200 album charts and

was eventually certified platinum in sales by the RIAA in the United

States.

33. On November 4, 1997, Roc-A-Fella released the second

studio album featuring Jay Z as the principal recording artist, entitled

Vol. 1…Hard Knock Life. The album peaked at #3 on the Billboard 200

album charts and was certified platinum by the RIAA.

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34. On September 29, 1998, Roc-A-Fella released the third

studio album featuring Jay Z as the principal recording artist, entitled

Vol. 2…Hard Knock Life. The album debuted at #1 on the Billboard 200.

The album catapulted the rapper Jay Z to international fame and earned

three Grammy Award nominations (1999). In February 1999, the album

won the Grammy award for Best Rap Album. Vol. 2…Hard Knock Life

has sold more than 5 million copies in the United States and remains the

best selling album of Mr. Carter’s recording career.

35. From April through August 1999, Jay Z and the other

rappers signed to Roc-A-Fella embarked on a nationwide stadium tour

called the “Hard Knock Life Tour.”

(3) ROC-A-FELLA AND MR. CARTER INVITE MR. MAHAN TO COLLABORATE ON THE MAKING OF SOUND RECORDINGS (JULY-AUGUST 1999)

36. In or about July 1999, Petitioner was invited by Roc-A-Fella’s

A&R (i.e., artist and repertoire) department to contribute his efforts as a

record producer, sound engineer, musical composer, song arranger,

programmer, Pro Tools editor, mixer and studio project manager to the

making of professional quality sound recordings.

37. Roc-A-Fella’s A&R executives sought out Petitioner’s

expertise on account of his unique sound and special expertise working

with the Pro Tools recording platform, which was then considered state-

of-the-art. The label executives also knew that Mr. Mahan had

substantial administrative skills and was capable of project managing

and setting up recording sessions at state-of-the-art Manhattan-based

10

recording studios.

38. In or about August 1999, Mr. Carter heard some of the

sound recordings engineered and programmed by Mr. Mahan via Roc-A-

Fella rapper Beanie Sigel. Mr. Carter thereafter sought to collaborate

with Mr. Mahan in the making of sound recordings in connection with

the release of the fourth studio album featuring Jay Z’s performances as

the principal rapper. The album, to be entitled Vol 3 . . . The Life and

Times of S. Carter (“Vol. 3”), was then scheduled for release just days

before New Year’s 2000.

39. Mr. Carter and Roc-A-Fella’s A&R executives explained to Mr.

Mahan that given the “party atmosphere” surrounding the turn of the

millennium and Jay Z’s newfound international success, they preferred

the upcming album to sound more “pop,” futuristic, upbeat and, above

all, dance-oriented. They sought to distinguish the overall sound of Vol.

3 from the 1990’s era sample-based hip-hop sound that had largely

characterized Jay Z’s first three studio albums. For that reason, Mr.

Mahan’s past experience in collaborating with Whitney Houston on I Am

Every Woman, one of the most popular dance tracks of Ms. Houston’s

career, was relevant to the genesis of the collaboration.

40. Mr. Mahan expressed his confidence to Mr. Carter that

Petitioner could originate a soundscape of greater three-dimensional

depth and overall clarity than any record which had been previously

released by Roc-A-Fella. Accordingly, Mr. Carter and Mr. Mahan verbally

11

agreed to work together as creators toward the goal of completing the

songs for the new album.1

(4) PETITIONER SETS UP SESSIONS AT SONY STUDIOS NYC

41. Shortly after reaching this consensus ad idem, Petitioner

began setting up studio sessions at Sony Music Studios (Studio E), at

460 W. 54th Street in Manhattan, where Petitioner had had a working

relationship with one of the studio managers. Petitioner set up Studio E

as the “homebase” for his collaboration with Jay Z, as well as other

rappers signed to Roc-A-Fella. Petitioner brought his own Pro Tools

system into Studio E and interfaced his then-current state-of-the-art

equipment with Sony’s built-in technology.

42. From on or about August 21, 1999 through mid-November

1999, Mr. Carter and Mr. Mahan worked together at Sony Studios in

Studio E to make individual sound recordings, some of which would

come to be published by Roc-A-Fella.

43. Significantly, none of the twelve (12) beatmakers who were

billed as “producer” on the Vol. 3 album were actually present during the

making of the sound recordings at Sony Studios – Studio E.

44. On November 24, 1999, MTV News published a news article

entitled “Jay Z Has Thriller-Lie Aspirations for New Album, Singles” and

reported that Mr. Carter had recently finished recording the tracks for

1 Accord David Miles Huber & Robert E. Runstein, MODERN RECORDING

12

his fourth studio album and “said he’s hoping that the new album will

prove to be as hit-filled as Michael Jackson’s epochal “Thriller” (which

spawned seven top-ten hits).”2 [In 2010, Mr. Carter described Thriller

as the “greatest album ever made.” See JAY-Z - DECODED (Kindle Location

807)].

45. Based on the success of their joint collaboration on Vol. 3,

Mr. Mahan was again asked by Mr. Carter in early 2000 to continue his

contributions to the making of sound recordings with Roc-A-Fella

recording artists.

B. PUBLISHED MATERIALS

(1) JAY Z - VOL. 3 . . . LIFE AND TIMES OF S. CARTER (1999)

46. On December 28, 1999, Roc-A-Fella released the album

entitled Vol. 3. … Life and Times of S. Carter.

(a) Commercial Success

47. The Vol. 3 album debuted at #1 on the Billboard 200 album

chart and sold more than 2 million copies in just two months. The

album embodied some of the most recognizable tracks of Jay-Z’s career

including, amongst others, Big Pimpin’ (feat. UGK); Do it Again (Put Your

Hands Up) (feat. Amil and Beanie Sigel); Things That You Do (feat. Mariah

Carey), and S. Carter (feat. Amil), all of which were tracked, recorded,

edited, arranged and mixed by Petitioner at Sony Studios.

2 See http://www.mtv.com/news/1430543/jay-z-has-thriller-like-aspirations-for-new-album-singles/ (accessed July 6, 2014).

13

48. Vol. 3…Life and Times of S. Carter eventually sold 3.1 million

copies in the United States and stands as the third-highest selling album

of Jay’s Z’s career. It is also ranked as one of the top 50 highest selling

hip-hop albums of all time (at #46).

49. Big Pimpin’ would become the most commercially successful

single on the album. In Rolling Stone’s updated 2010 list of the “The 500

Greatest Songs of All Time”, the song ranked at #467.

50. Mr. Carter has described Big Pimpin’ as one of the records

that served as the “foundation of my career.” See Jay Z Interview at “The

Breakfast Club (Power 105.1 radio interview. Accessible at

http://www.youtube.com/watch?v=qqAFi_uiquA (@ 42:50). Notably,

Petitioner made substantial original contributions to the making of Big

Pimpin’ and is credited on the original CD liner notes with both recording

and mixing the song. See Exhibit D.

(b) Album Reviews

51. Upon release of Vol. 3., NME.com proclaimed that the album

“inevitably… will triumph at the global musical box office …[Jay Z] treats

the listener…[to] a series of uptempo party tunes much leavened by

threats to the masculinity of competitors.” Quoted in JAY-Z AND THE ROC-

A-FELLA RECORDS DYNASTY (Kindle Locations 1470-1472).

52. ROLLING STONE magazine reviewed Vol. 3 upon its release and

concluded that “this is his strongest album to date, with music that’s

filled with catchy hooks, rump-shaking beats and lyrics fueled by Jay’s

14

hustler’s vigilance… Jay has become a better architect of songs.”

(c) Credit Billings

53. As further detailed in Part VII of this Petition, Mr. Mahan

contributed his scientific expertise and artistic sensibility as a record

producer, tracking engineer, recording engineer, vocal compositor,

mixing engineer, music programmer, song arranger, editor, pre-

mastering engineer and studio project manager to a total of 14 out of 17

individual sound recordings embodied on Vol. 3 . . . Life and Times of S.

Carter (including the bonus tracks).

54. As per Schedule B, Petitioner was credited on the various

album release formats of Vol. 3 as a record producer, recording engineer,

mixing engineer and music programmer. [See Exhibit D]

(d) Written Agreements

55. Petitioner did not sign any written agreement with any of the

Respondents nor any other third party concerning his contributions to

the making of the Schedule A Recordings embodied on Vol. 3.

(2) JAY Z - ROC LA FAMILIA: DYNASTY (2000)

56. On October 31, 2000, Roc-A-Fella released an album entitled

Roc La Familia: Dynasty (“Dynasty”) featuring Jay Z as the principal

rapper.


57. The Dynasty debuted at #1 on the Billboard 200 album chart

15

and eventually sold 2.3 million copies.

58. According to Billboard, The Dynasty becoming the 20th

highest selling R&B/Hip-Hop Album of the 2000-2010 decade.

(b) Album Reviews






individual sound recordings embodied on The Dynasty.

(c) Credit Billings






individual sound recordings embodied on The Dynasty.

61. Petitioner was credited for some of his original contributions

to the sound recordings embodied on THE DYNASTY as per Schedule B.

[See Exhibit E].



16


the making of the Schedule A Recordings embodied on THE DYNASTY.

(3) BEANIE SIEGEL – THE TRUTH (2000)


63. On February 29, 2000, Roc-A-Fella released the debut album

of rapper Beanie Sigel entitled The Truth.

64. The album reached #5 on the Billboard 200 album chart and

embodied the popular singles “Anything” and “Remember Them Days”

(feat. Eve).

(b) Album Reviews

65. Upon the album’s release, ROLLING STONE published a review

observing that “the production is very similar to Jay Z’s album 3…Life

and Times of S. Carter [characterized] by a club-friendly synthesized

bounce.”

(c) Credit Billings


contributed his technical expertise and artistic sensibility as a record




individual sound recordings embodied on The Truth.

67. Petitioner was credited for some of his original contributions

17

to the sound recordings as per Schedule B. [See Exhibit F.]




the making of the Schedule A Recordings embodied on THE TRUTH.

(4) AGGREGATE OF PUBLISHED SOUND RECORDINGS

69. As per Schedule A, Petitioner made original contributions to

a total of forty-five (45) individual sound recordings embodied on the

following albums released by Roc-A-Fella:

Jay Z – VOL. 3 … THE LIFE AND TIMES OF S. CARTER (1999)

Jay Z – ROC LA FAMILIA: THE DYNASTY (2000)

Beanie Sigel – THE TRUTH (2000)

Beanie Sigel – THE REASON (2000)

Memphis Bleek – THE UNDERSTANDING (2000)

Amil – MONEY IS LEGAL (2000)

C. UNPUBLISHED MATERIALS

70. In November 2000, after the commercial release of The

Dynasty, Petitioner ended his professional collaborations with Roc-a-

Fella recording artists.

71. At the time, Mr. Mahan’s proprietary computer hard drives

and storage peripherals contained the original Pro Tools multi-track

recordings, preliminary mixes, outtakes, alternative takes, rough drafts,

18

freestyle sessions, dubs, extended versions, and other unpublished

materials originated by Petitioner (and the putative joint authors) in 1999

and 2000.

72. The Pro Tools multi-track sound recordings embodied in

Petitioner’s hard drives and peripherals are “pre-mastered” versions that

existed prior in time to the actual rendering of the so-called “master”

versions, i.e. the works that were released to the public.

73. As of November 2000, Petitioner also had in his possession

two-track mix down versions that had been “dumped” to digital audio

tape (DAT). These DATs are known as “safety copies” of the master

recordings which had already been sent to the record label. Roc-A-Fella

A&R executives placed Petitioner in charge of safekeeping these DATs.

74. Some of the two-track mix down DAT tapes also contain

instrumental versions, “7-inch single” mixes for television and acapella

versions of some of the Schedule A Recordings.

19

SCHEDULE A

INDEX OF SOUND RECORDINGS RELEASED BY ROC-A-FELLA WHICH EMBODY THE ORIGINAL CONTRIBUTIONS OF MR. MAHAN

# SONG TITLE ALBUM RAPPERS

(& SINGERS) PRIMARY BEATMAKER

SOUND ENGINEER(S)

1 “Hova Song (Intro)”

VOL. 3 (1999)

Jay Z K ROB MAHAN, Duro

2 “Do It Again (Put Ya Hands Up)”

VOL. 3 (1999)

Jay Z, Beanie Sigel, Amil

RICK ROCK MAHAN, DURO

3 “Dope Man” VOL. 3 (1999)

Jay Z, Serena Altschul

JUST BLAZE MAHAN, DURO, YOUNG GURU

4 “Things That U Do”

VOL. 3 (1999)

Jay Z, Mariah Carey

SWIZZ BEATZ

MAHAN

5 “It's Hot (Some Like It Hot)”

VOL. 3 (1999)

Jay Z TIMBALAND MAHAN

6 “S. Carter” VOL. 3 (1999)

Jay Z, Amil

BINK MAHAN, DURO

7 “Pop 4 Roc”

VOL. 3 (1999)

Jay Z, Beanie Sigel, Memphis Bleek, Amil

DJ CLUE MAHAN

8 “Watch Me” VOL. 3 (1999)

Jay Z, Dr. Dre

IRV GOTTI LIL ROBB

MAHAN

9 “Big Pimpin'” VOL. 3 (1999)

Jay Z, UGK

TIMBALAND MAHAN, JIMMY DOUGLAS

10 "There's Been a Murder"

VOL. 3 (1999)

Jay Z

RUSS HOWARD MAHAN, DURO

11 "NYMP" VOL. 3 (1999)

Jay Z

ROCKWILDER MAHAN, DURO

12 “Hova Song (Outro)”

VOL. 3 (1999)

Jay Z

K ROB MAHAN

13 “Is That Yo Bitch”

VOL. 3 (1999)

Jay Z Missy Elliot

TIMBALAND MAHAN

20

# SONG TITLE ALBUM RAPPERS (& SINGERS)

PRIMARY BEATMAKER

SOUND ENGINEER(S)

(bonus track)

14 “Girl's Best Friend” (bonus track)

VOL. 3 (1999)

Jay Z, Theresa Rodriguez

SWIZZ BEATZ MAHAN

15 “Intro” DYNASTY (2000)

Jay Z

JUST BLAZE MAHAN

16 "Change the Game"

DYNASTY (2000)

Jay Z Memphis Bleek, Beanie Sigel, Static Major

RICK ROCK MAHAN DURO

17 "Streets Is Talking"

DYNASTY (2000)

Jay Z Beanie Sigel

JUST BLAZE MAHAN

18 "This Can't Be Life"

DYNASTY (2000)

Jay Z Beanie Sigel, Scarface

KANYE WEST MAHAN DURO

19 "Get Your Mind Right Mami"

DYNASTY (2000)

Jay Z Memphis Bleek, Snoop Dogg, Rell

RICK ROCK MAHAN

20 "Stick 2 the Script”

DYNASTY (2000)

Jay Z Beanie Sigel, DJ Clue

JUST BLAZE MAHAN

21 “You, Me, Him and Her”

DYNASTY (2000)

Jay Z Beanie Sigel, Memphis Bleek, Amil

BINK MAHAN

22 “Guilty Until Proven Innocent”

DYNASTY (2000)

Jay Z R. Kelly

ROCKWILDER MAHAN

23 “Parking Lot Pimpin'”

DYNASTY (2000)

Jay Z Beanie Sigel, Memphis Bleek, Lil' Mo

RICK ROCK MAHAN

24 “Holla” DYNASTY (2000)

Jay Z Memphis Bleek

B-HIGH MAHAN

25 “1-900-Hustler” DYNASTY (2000)

Jay Z Beanie Sigel,

BINK MAHAN

21


PRIMARY BEATMAKER

SOUND ENGINEER(S)

Memphis Bleek, Freeway

26 “The R.O.C.” DYNASTY (2000)

Jay Z, Beanie Sigel, Memphis Bleek

JUST BLAZE MAHAN

27 “Soon You'll Understand”

DYNASTY (2000)

Jay Z JUST BLAZE MAHAN

28 “Squeeze 1st”

DYNASTY (2000)

Jay Z RICK ROCK MAHAN

29 “Where Have You Been"

DYNASTY (2000)

Jay Z, Beanie Sigel, L. Dionne

T.T. MAHAN

30 “Who Want What”

THE

TRUTH (2000)

Beanie Sigel, Memphis Bleek

JUST BLAZE MAHAN DURO

31 “Raw & Uncut”

THE

TRUTH (2000)

Beanie Sigel, Jay Z

BINK MAHAN

32 “Mac Man” THE

TRUTH (2000)

Beanie Sigel,

SHIM KIRKLAND MAHAN

33 “Everybody Want to be a Star”

THE

TRUTH (2000)

Beanie Sigel

BERNARD

PARKER MAHAN

34 “Remember Them Days”

THE

TRUTH (2000)

Beanie Sigel

LOFEY MAHAN

35 “Stop, Chill” THE

TRUTH (2000)

Beanie Sigel

ROCKWILDER MAHAN DURO

36 “Mac and Brad” THE

TRUTH (2000)

Beanie Sigel

J-5 MAHAN DURO

37 “What a Thug About”

THE

TRUTH (2000)

Beanie Sigel

BUCKWILD MAHAN

38 “What You Life Like”

THE

TRUTH (2000)

Beanie Sigel

SHIM KIRKLAND MAHAN

39 “Ride 4 My” THE

TRUTH Beanie Sigel

BINK MAHAN

22


PRIMARY BEATMAKER

SOUND ENGINEER(S)

(2000)

40 “Die” THE

TRUTH (2000)

Beanie Sigel

PRESTIGE

VANDERPOOL MAHAN DURO

41 “Tales of a Hustler”

THE

REASON Beanie Sigel SHA-SELF MAHAN

42 “The Change Up”

THE UNDERST-ANDING

Memphis Bleek

SHIM KIRKLAND MAHAN

43 “My Mind Right” THE UNDERST-ANDING

Memphis Bleek

DJ TWINZ MAHAN

44 “Is That Your Chick”

THE UNDERST-ANDING

Memphis Bleek, Twista, Missy Elliot

TIMBALAND MAHAN

45 “4 Da Family” MONEY IS LEGAL

Amil, Jay Z, Memphis Bleek, Beanie Sigel

TYFIFE MAHAN

23

SCHEDULE B

CREDIT BILLING TO CHAUNCEY MAHAN

# SONG TITLE ALBUM LINER NOTE CREDITS

1 “Hova Song (Intro)” VOL. 3 (1999)

RECORDED BY: CHAUNCEY MAHAN

2 “Do It Again (Put Ya Hands Up)”

VOL. 3 (1999)


3 “Dope Man” VOL. 3 (1999)

PRODUCED & RECORDED BY: CHAUNCEY MAHAN

4 “Things That U Do”

VOL. 3 (1999)

PRODUCED & RECORDED BY: CHAUNCEY MAHAN

5 “S. Carter” VOL. 3 (1999)

PRODUCED AND RECORDED BY: CHAUNCEY MAHAN

6 “Pop 4 Roc”

VOL. 3 (1999)


7 “Watch Me” VOL. 3 (1999)


8 “Big Pimpin'” VOL. 3 (1999)

RECORDED & MIXED BY: CHAUNCEY MAHAN

9 "There's Been a Murder" VOL. 3 (1999)

RECORDED & PRODUCED BY: CHAUNCEY MAHAN

10 "NYMP" VOL. 3 (1999)


11 “Hova Song (Outro)” VOL. 3 (1999)



VOL. 3 (1999)


24


13 “Is That Yo Bitch”

(bonus track) VOL. 3 (1999)

RECORDED & EDITED BY: CHAUNCEY MAHAN


VOL. 3 (1999)


15 “Intro” DYNASTY (2000)


16 "Change the Game" DYNASTY (2000)


17 "Streets Is Talking"

DYNASTY (2000)


18 "This Can't Be Life"

DYNASTY (2000)


19 "Get Your Mind Right” DYNASTY (2000)


20 "Stick 2 the Script” DYNASTY (2000)


21 “You, Me, Him and Her” DYNASTY (2000)


22 “Guilty Until Proven Innocent”

DYNASTY (2000)


23 “Parking Lot Pimpin'”

DYNASTY (2000)


24 “Holla” DYNASTY (2000)


25 “1-900-Hustler” DYNASTY (2000)


26 “The R.O.C.” DYNASTY (2000)

RECORDED BY:

25


CHAUNCEY MAHAN

27 “Soon You'll Understand” DYNASTY (2000)


28 “Squeeze 1st”

DYNASTY (2000)


29 “Where Have You Been" DYNASTY (2000)


30 “Who Want What”

THE TRUTH (2000)


31 “Raw & Uncut” THE TRUTH (2000)


32 “Mac Man” THE TRUTH (2000)


33 “Everybody Want to be a Star”

THE TRUTH (2000)


34 “Remember Them Days” THE TRUTH (2000)


35 “Stop, Chill” THE TRUTH (2000)


36 “Mac and Brad” THE TRUTH (2000)


37 “What a Thug About” THE TRUTH (2000)


38 “What You Life Like” THE TRUTH (2000)


39 “Ride 4 My” THE TRUTH (2000)


26


40 “Die” THE TRUTH (2000)


41 “Tales of a Hustler” THE REASON (2000)


42 “The Change Up” THE UNDERSTANDING


43 “My Mind Right” THE UNDERSTANDING


44 “Is That Your Chick” THE UNDERSTANDING


45 “4 Da Family” MONEY IS LEGAL


27

PART II:

SR COPYRIGHT REGISTRATIONS

A. “EMPLOYER-FOR-HIRE” REGISTRATIONS (1999-2000)

75. As per Schedule C, Roc-A-Fella Records, LLC filed SR

copyright registrations with the U.S. Copyright Office relating to the

Schedule A Recordings. True and correct copies of the SR registration

forms on file with the U.S. Copyright Office is attached hereto as Exhibit

76. Roc-A-Fella registered all sound recording works listed in

Schedule C as “employer-for-hire” despite the fact that Roc-A-Fella was

not the Petitioner’s employer.

B. ROC-A-FELLA’S REPORTED COPYRIGHT ASSIGNMENT (2004)

77. In December 2004, Mr. Carter reportedly negotiated the

contractual reversion of SR copyrights registered by Roc-A-Fella as part

of a transaction in which Mr. Carter divested his ownership interests in

Roc-A-Fella Records and became President of Def Jam.

78. Under the purported terms of the 2004 agreement between

Mr. Carter and Roc-A-Fella (or UMG or Def Jam) the reversion of the SR

copyrights are scheduled to trigger ten (10) years after the 2004

transaction, a period which is set to expire by the end of 2014. [See

Exhibit R].

28

SCHEDULE C

ROC-A-FELLA’S SR COPYRIGHTS

Registered Claimant: Roc-A-Fella Records, LLC (“employer for hire”) Type of Work: Sound Recording(s)

U.S. Registration #

Date

Title (Rap Artist)

Basis of Claim

Description

Note

1 SR0000272-074

10-17-1999

Jigga my Nigga (Jay Z) / What a Thug About (Beanie Sigel)

New Matter: Remix

12” Vinyl (33 1/3 rpm)

n/a

2 SR0000270-611

10-19-1999

Jigga my Nigga (Jay Z) / What a Thug About (Beanie Sigel) / When Will You See (Memphis Bleak)

New Matter: all other sound recordings; pictorial matter

CD Single

Two (2) Selections are Pre-existing

3 SR0000279-081

2-28- 2000

Do it again (put ya hands up) / So ghetto (Jay Z)

n/a 12” Vinyl (33 1/3 rpm)

Three (3) Versions of Each Selection

4 SR0000278-208

3-20- 2000

THE TRUTH (explicit) (Beanie Sigel)

n/a CD n/a

5 SR0000279-270

4-12- 2000

LIFE AND TIMES

OF S. CARTER

VOL. 3 (Jay Z)

New Matter: Remix, additional recordings

CD

Collection

6 SR0000295-613

12-11-2000

THE DYNASTY: ROC LA FAMILIA: (Jay Z)

n/a CD n/a

7 SR0000286-397

9-18- 2000

Remember Them Days

New Matter:

12” Vinyl (33 1/3 rpm)

Three (3) versions of

29

U.S. Registration #

Date

Title (Rap Artist)

Basis of Claim

Description

Note

(Raw & Uncut) remixes of sound recordings

Each Selection

8 SR0000298-140

06-04-2001

Guilty until proven innocent; 1-900-hustler

New Matter: remixes of sound recordings

12” Vinyl (33 1/3 rpm)

n/a

9 SR0000293-532

2-21- 2001

Anything; Big Pimpin (Jay Z)

New Matter: remixes of sound recordings

12” Vinyl (33 1/3 rpm)


10 SR0000293-539

01-09-2001

Change the Game; You, me and her / (Jay Z)

New Matter: remixes of preexisting sound recordings

12” Vinyl (33 1/3 rpm)


11 SR0000293538

02-21-2001

Parking lot pimpin’ (Jay Z)

New Matter: remixes of preexisting sound recordings

12” Vinyl (33 1/3 rpm)


12 SR0000267365

12-27-2000

THE

UNDERSTANDING (Memphis Bleek)

n/a CD n/a

.

30

PART III

PRESENT OWNERSHIP DISPUTE

A. PETITIONER’S CUSTODY OF TANGIBLE SOUND RECORDINGS

(1) MR. MAHAN’S PHYSICAL POSSESSION & CUSTODY OF MULTI-TRACK (PRO

TOOLS) AND TWO-TRACK (DAT) SOUND RECORDINGS FOR 15 YEARS

79. From the moment of the recordings’ tangible fixation into

digital waveform in 1999 and 2000 up through April 18, 2014, Petitioner

was in legal custody, possession and control of all multi-track sound

recordings to which he contributed his aesethic sensibilities.and

technical skills.

80. After ending his collaboration with Roc-A-Fella recording

artists, Petitioner continued to archive his proprietary computer

hardware, electronic storage devices (e.g., external hard-drives and

cartridges) and movable media (e.g., digital audio tapes, CDs, cassettes)

[collectively the “chattel”].

(2) RESPONDENTS’ LONG-TERM KNOWLEDGE OF PETITIONER’S CUSTODY &

POSSESSION OF ALL UNPUBLISHED SOUND RECORDINGS

81. On November 16, 2000, Petitioner transmitted written

notification to several Def Jam and Roc-A-Fella record label executives,

including Mr. Tony Vanias, Ms. Linda Lee and Mr. Kyambo “Hip-Hop”

Joshua, amongst others. In these notifications, Petitioner informed the

Def Jam record label executives that he was in possession of multi-track

31

sound recordings made in collaboration with Roc-a-Fella artists, which

he described as “masters.”3

82. Petitioner never received a response from Def Jam or Roc-A-

Fella record label executives.

83. For a period of almost 14 years, key Def Jam and UMG

record label executives who administered sound recordings released on

the Roc-A-Fella imprint knew that the Schedule A Sound Recordings and

unpublished materials were in Petitioner’s custody, possession and

control. Despite this knowledge, Def Jam or Roc-A-Fella record label

executives never took care to inquire as to what sound recordings

Petitioner had in his custody, possession and control.

84. Neither Mr. Carter nor any of his agents contacted Petitioner

at any time after November 2000.

85. Mr. Carter knew or should have known that all of the multi-

track sound recordings created during Petitioner’s collaboration with

Roc-a-Fella artists had been archived by Petitioner in his Pro Tools

system, which saved digital multi-track audio files on Petitioner’s

computer hard-drives and external peripheral devices.

86. Mr. Carter knew that Petitioner maintained in his possession

a comprehensive library of safe copy DAT tapes containing two-track

versions of songs that Petitioner could download from Petitioner’s Pro

Tools system. 3 Such materials were not actually “masters,” in the technical sense of that term, because the materials embodied in the chattel were not those sent to the mastering facility.

32

87. At all relevant times, Mr. Carter knew or should have known

that Petitioner was the chief custodian of two-track, hard copy versions

on DAT because Mr. Carter routinely requested that Petitioner make two-

track copies in cassette format for Mr. Carter’s own personal use outside

of the studio. Mr. Carter took care to request cassette format of pre-

mastered material to prevent digital bootlegging of CDs or DATs.

88. At all relevant times, Mr. Carter knew or should have known

that Petitioner was the chief custodian of all two-track copies of the

Schedule A Recordings in DAT format, which Petitioner provided to Mr.

Carter or Roc-A-Fella A&R executives, upon their request, in advance of

Jay Z’s live performances or television appearances.

89. UMG, Def Jam and Roc-A-Fella have been in possession of

the finalized two-track master recordings since the date they were first

delivered to the third-party mastering facility back in 1999 or 2000.

B. RESONDENTS’ EXPRESS RENUNICATION OF PETITIONER’S

OWNERSHIP AND AUTHORSHIP RIGHTS

(1) RESPONDENT ROC NATION’S FALSE CRIMINAL CHARGES AGAINST

PETITIONER (APRIL 18, 2014)

90. On April 18, 2014, Respondents Roc Nation and Mr. Carter,

via their Los Angeles-based civil litigation counsel, orchestrated a

makeshift “sting operation” in which Respondents’ agents met Petitioner

in person at his commercial storage unit in Los Angeles, California.

Shortly after cataloguing an inventory of the copyrightable materials and

33

DAT tapes in Petitioner’s possession, Respondents called the LAPD

(Devonshire precint) to seize Petitioner’s chattel at the storage unit based

on patently false accusations that Petitioner was in possession of “stolen

property.”

91. On April 18, 2014, the LAPD seized Petitioner’s chattel,

which upon information and belief continues to be held in the evidence

locker of the LAPD. [A true and correct copy of the “Receipt of the

Property” form, dated April 18, 2014, is attached hereto as Exhibit T].

92. Concurrent with the LAPD’s seizure of Petitioner’s chattel,

Respondents Roc Nation and Mr. Carter lodged three separate criminal

complaints against Petitioner based on false accusations of “grand

larceny” in New York (Manhattan); “extortion” in Los Angeles (Beverly

Hills); and “possession of stolen property” in Los Angeles (Devonshire).

93. Before the date of April 18, 2014, none of the Respondents,

nor any third party, had ever reported the Sound Recordings at issue as

missing, lost or stolen. Nor did they make any ownership claim with

respect to the chattel.

94. Petitioner was not arrested by police in connection with the

April 18, 2014 incident.

95. As of the date of filing this complaint, Petitioner has not been

charged with any crime by any one of the three police departments in

New York City or Los Angeles.

34

(2) ROC NATION’S VOLUNTARY WITHDRAWAL OF “EXTORTION” COMPLAINT

THREE WEEKS AFTER FILING CHARGES (MAY 14, 2014)

96. On May 6, 2014, Petitioner’s counsel participated in a

teleconference with Roc Nation’s lead counsel during which Petitioner

asserted a joint copyright ownership interest in the Sound Recordings.

Several days later, Petitioner’s counsel shared these same views with

UMG’s in-house counsel.

97. On May 14, 2014, it was widely reported that Respondents

Roc Nation and Mr. Carter unilaterally withdrew the criminal charges

pending with the LAPD (Beverly Hills division). The media also reported

that the LAPD had “killed” the investigation. [Attached as Exhibit U are

true and correct copies of various news reports, dated May 14, 2014].

[next page]

35

PART IV

ORIGINS OF HIP-HOP SOUND PRODUCTION

99. “Each musical genre has its own set of rules and its own

form.” [quoting THIS IS YOUR BRAIN ON MUSIC (2006), Exhibit K, p. 239]

100. “When we try to understand the music of a different culture

or historical period, we must be prepared to open our minds . . . to the

possibility that they may have an entirely different conception of what

music itself is.” [quoting AFRICAN RHYTHM & SENSIBILITY (1979), Exhibit L,

p. 31]

101. “Defining the ways a producer can contribute to a sound

recording requires a more accurate understanding of the record making

process than authorities have demonstrated.” See Note, Fix it in the Mix:

Disaggegating the Record Producer’s Copyright, 26 HARVARD JOURNAL OF

LAW & TECHNOLOGY 325 (Fall 2012).

A. JAMAICAN “DUB” MUSIC (1967 - 1973)

(1) THE INVENTION OF THE “SOUND SYSTEM”

102. “Reggae, it has often been said, is rap music's elder kin.…

The blues had Mississippi, jazz had New Orleans. Hip-hop has Jamaica.”

[quoting Jeffrey Chang, CAN’T STOP WON’T STOP: HIP-HOP GENERATION

(2004), pp. 22-23]. “Jamaican musical forms have been particularly

significant in the development of hip-hop aesthetic practices.” [quoting

36

Morgan and Bennett, Hip-Hop and the Global Imprint, Exhibit N, p. 1].

103. By the early 1960’s, portable sound equipment had largely

supplanted the use of live musicians to play large Jamaican dancehalls

and “yards,” i.e. schoolyards converted into venues for dancing. Outfitted

with powerful amplifiers and homemade speakers, a single DJ, or

“selector,” could now organize a musical gathering for the entire

community.

104. During the 1960’s, the Jamaican sound engineer who both

provided the sound equipment and who also knew how to leverage the

technology to stage a better “sound system” became the dominant

contributor to the evolution of Jamaican musical forms.

105. As per Jeff Cheng, “the pop audience demanded heroes and

icons, but reggae, perhaps more than any other music in the world, also

privileged the invisible music men, the sonic architects - the studio

producer and the sound system selector. Together, during the seventies,

these two secretive orders emerged as sources of power in Jamaica.”

[quoting HIP-HOP GENERATION (2004), Exhibit H, p. 29]

(2) DUBPLATES AS A NEW “VERSION” BASED ON ISOLATED DRUM TRACKS

106. In the mid-1960’s, as the Jamaican music industry

expanded, sound systems began to record local artists’ songs onto vinyl

acetates called “dubplates.”

107. In 1967, a Jamaican sound engineer was in the process of

37

cutting dubplates in a record plant when he accidentally pressed up a B-

side without any vocals on the rhythm track. Jamaican DJs successfully

incorporated these alternative instrumental mixes, called “dubs,” into

their selections for the dancehall

108. With the invention of dub, the Jamaican sound engineers

recognized that a single studio session with musicians could now be

used as source material to produce multiple “versions” or alternate mixes

of the same track. The concept of the “remix” was thus born.

109. The dub versions predominantly featured drum, percussive

and bass elements whose frequencies were manipulated through the use

of electronic sound mixers and dynamic processors. Jamaican sound

engineers produced these instrumentals by adding layers of electronic

sound effects to forge a new sonic collage that became its own exclusive

recording. As such, the sound engineer leveraged his knowledge of

progressive audio techniques to create derivative works of the source

material.

(3) THE SOUND ENGINEER AS MUSICAL COMPOSER AND PRODUCER

110. By the early 1970’s, Jamaican sound mixing engineers, such

as Osbourne Ruddock p/k/a “King Tubby,” pioneered the “dub sound”

and thereby elevated the role of mixing engineers to the creative ranks

traditionally reserved for composers and musicians. In recognition of

their technological expertise, these avant-garde musicmakers were called

“dub scientists.”

38

111. In the privacy of their own recording studios, the 70’s era

dub scientist could produce numerous, distinct versions of a single

sound recording through electronic manipulation of the multi-track’s

sonic frequencies.

112. By accentuating certain sounds and removing others, or by

applying various special effects such as echoes, reverb, filters and

phasers, Jamaican dub scientists found success by reworking the

original sound recording of studio musicians into unique instrumental

configurations which highlighted the core rhythms of their bass and

drum parts.

113. “With dub music … “[a] single [live] band session … could be

recycled as … a dub version in which the mixing engineer himself

became the central performer-experimenting with levels, equalization and

effects to alter the feel of the riddim [rhythm]; and break free of the

constraints of the standard song.” [quoting HIP-HOP GENERATION (2004),

Exhibit H, p. 30]

114. Through the exploratory use of new technology, dub

scientists - rather than the original studio musicians or vocalists –

became the individuals responsible for producing the final sound of the

instrumental derivatives called dubs and “B-sides.”

115. “Dub’s birth …. would become a diagram for hip-hop music

. . . A space had been pried open for the ‘break,’ for the possibility …[of

hearing] versions not represented in the official version.” [HIP-HOP

39

GENERATION (2004), Exhibit p. 30]

B. BRONX - NYC: THE BIRTH OF HIP-HOP (1974-1979)

116. Hip-Hop music originated in the South Bronx, New York City

in the mid-1970’s and was founded upon the innovations of three

visionary sound engineers – DJ Kool Herc, Grandmaster Flash, and

African Bambaataa – who, like their Jamaican counterparts, pioneered

technological developments in the presentation of sound systems at local

community dances.

(1) DJ KOOL HERC

117. As the recognized founder of Hip-Hop music, Clive Campbell

p/k/a “DJ Kool Herc,” spent his childhood years in Kingston and

witnessed the advent of the Jamaican sound systems first-hand. His

parents would later emigrate to the West Bronx in the late 60’s.

118. In 1973, Kool Herc began to DJ parties at the local

recreational center. “Herc wanted to summon the same kind of

excitement he felt as a child in Jamacia….by translating the Kingstonian

vibe of sound system DJs. [HIP-HOP GENERATION (2004), Exhibit H, p. 68]

119. After observing the enthusiastic response of dancers to

certain parts of the records he was playing, DJ Kool Herc discovered how

to extend these momentary “breaks” into full-length songs consisting of

nothing but a “breakbeat” which was looped into a repeating cycle.

120. The “breakbeat” is a section of the vinyl record where the

40

melodic elements of the original piece are suspended and the rhythm

section of the band – the drums, bass and conga - are isolated and

brought center stage in the mix.4 [quoting MAKING BEATS (2002) p. 36].

121. “The central innovation of early Hip-Hop was the use of two

turntables and a mixer with two copies of the same record to achieve

isolation of the “break . . . At some point in the late 1970s, the isolation

of the break, along with other [turntable] effects began to be considered a

musical form unto itself . . . The break-beat focus of the Bronx DJs set in

motion a number of social trends that would give birth to the music now

known as hip-hop.“ [quoting MAKING BEATS (2004), Exhibit J, pp. 31-33]

(2) GRANDMASTER FLASH

122. In 1975, Mr. Joseph Saddler p/k/a “Grandmaster Flash”

was a teenager living in the Bronx who shared Kool Herc’s love of music

and electrical engineering. Grandmaster Flash “tried to figure out how to

turn beat-making and crowd-rocking into a science” before venturing out

to conquer the scene. [quoting HIP-HOP GENERATION (2004), Exhibit H, p.

112].

123. Grandmaster Flash studied the turntable and mixer for

years “trying to understand which model and what cartridges and styli

were the most durable, which platters had the best torque … he

4 Most “breaks” upon which the foundation of Hip-Hop musical production is based were recorded by bands of musicians who were active during the late 1960’s and early-mid 1970’s.

41

understood that “each record's rhythm had its own circumference to

trace, that the break could be measured from point-to-point, and he

developed a theory based on sectioning off the record like a clock.”

[quoting HIP-HOP GENERATION (2004), Exhibit p. 112].

(3) AFRIKA BAMBAATAA

124. Completing the trinity of hip-hop’s three kings was another

Bronx youth of Caribbean descent named Afrika Bambattaa.

125. According to Dangerous Crossroads (Lipsitz, G.):

“The first visible manifestations of what we have come to call hip-hop culture . . . appeared in the early 1970s when . . . Afrika Bambaataa organized the ‘Zulu Nation.’ . . . Bambaataa tried to channel the anger and enthusiasm of young people in the South Bronx away from gang fighting and into music, dance, and graffiti. He attracted African-American, Puerto Rican, Afro-Caribbean, and Euro-American youths into his “nation.” . . . [quoting DANGEROUS

CROSSROADS (1994), Exhibit M, p. 26]. 126. When Kool Herc first come on the scene, he stayed ahead of

the other DJs with the power of his sound system, Bambattaa changed

the game with his programming genius.” [quoting HIP-HOP GENERATION

(2004), Exhibit H, p. 111].

127. “As a DJ, Bam became known for being able to find a

danceable break in any kind of record … He staged dances featuring his

estimable talents as a mixer and sound system operator capable of

providing a non-stop flow of danceable beats from an enormous range of

musical styles.” [quoting Dan Charnas, The BIG PAYBACK: THE HISTORY OF

THE BUSINESS OF HIP-HOP (2009), p. 20]

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PART V

AFRICAN-DERIVED MUSICAL AESTHETICS

A. PERFORMANCE VALUES

(1) PARTICIPATORY COLLABORATION

128. According to DJ Kool Herc: “Hip-hop is a family so everybody

has got to pitch in. East, west, north or south - we come from one coast

and that coast was Africa.” [See HIP-HOP & THE GLOBAL IMPRINT (2011),

Exhibit N, p. 31]

129. As per DANGEROUS CROSSROADS (Lipsitz, G.), hip-hop “brings

a community into being through performance” based on the same

customs and aesthetic values that are prevalent in traditional music-

making societies throughout sub-Saharan regions of Africa:

“Hip-hop culture brings to a world audience the core values of music from most sub-Saharan African cultures. It blends music and life into an integrated totality, uniting performers, dancers, and listeners in a collaborative endeavor . . . African music is participatory, collective and collaborative. Rhythms are layered on top of one another as a dialogue . . . The incorporation of these African elements into hip-hop raises challenges to Western notions of musical (and social) order” [quoting Dangerous Crossroads (1994), Exhibit M, p. 36] 130. In his ethnomusicology piece AFRICAN RHYTHM & SENSIBILITY,

John Miller Chernoff explains:

“In an African musical event, everyone present plays a part … The most successful performance will involve everyone present

43

on various levels of participation and appreciation, and their enjoyment is the chief criterion of excellence . . . “[F]rom a[n African] musician's standpoint, making music is … a matter of expressing the sense of an occasion, the appropriateness at that moment of the part the music is contributing to the rest . . . For African musicians, each new situation is the fundamental setting of artistic creativity.” [quoting AFRICAN RHYTHM (1978), Exhibit L, p. 87, 50]

(2) MUSIC-MAKING ROLES

131. Hip-hop culture “promotes the mythological DJ as the

cornerstone of the musical form and, by extension, the community itself.”

Hip-hop DJs are “seen as artists in their own right, creating a collage of

hip-hop songs.” [quoting MAKING BEATS (2004), Exhibit J, p. 50]

132. In traditional African drum circles, the ensemble leader is

known as the “master drummer.” His role is remarkably similar to that of

the live Hip-Hop DJ. According to AFRICAN RHYTHM & SENSIBILITY

(Chernoff, J.), the master drummer:

has an audience, consisting of players and dancers as well as spectators, and he creates for them as well as for himself. He is a master of ceremonies in a way, whose responsibility is that everyone have a good time. He will invite honored guests to dance; . . . he times the length of the movements, sets the tempo of the dance drumming and keeps his musicians up to the mark . . . ..” [quoting AFRICAN RHYTHM &

SENSIBILITY (1978), Exhibit L, p. 50]

133. Music scholars have often compared modern rappers to

ancient African “griots,” who are described by Chernoff as a “hereditary

caste of musicians whose political duty it is to preserve and recite the

great historical traditions.” [quoting AFRICAN RHYTHM & SENSIBILITY (1978),

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Exhibit L, p. 50].

(3) IMPROVISATION

134. The ability to “freestyle,” or improvise one’s performance in

the moment, is a critical value in the expressive manifestation of hip-

hop.

135. “Whatever feeling demands a release at a given moment finds

its way out in the songs. The music is as deep and varied as life.” Jay-Z

- DECODED (Kindle Locations 2892-2893).

136. “African music, like other African arts, is admired mostly as

a spontaneous and emotional creation, an uninhibited, dynamic

expression of vitality [p. 28]. . . The musician who can add an extra

dimension of excitement, the cutting edge, to a performance will

demonstrate both his mastery of all the elements of the music and his

involvement with the progress of the social event.” [quoting AFRICAN

RHYTHM & SENSIBILITY (1979), Exhibit L, p. 82]

(4) UNIQUE STYLE

137. A distinctive performance style is one of the core values of

the hip-hop aesthetic, e.g., “It fits my style to rhyme with high stakes

riding on every word and to fill every pause with pressure and

possibility.” Jay-Z - DECODED (Kindle Locations 2077-2078). “I also make

choices in technique and style to make sure that it can touch as many

people as possible without it losing its basic integrity.” Id. at Kindle

45

Locations 1478-1480).

138. Similarly, “[i]n Africa, people are interested in the special

quality of a given performance, and they pay attention to the distinctive

touch of a musician who through his central role in the event

characterizes it with his personality. African [musicians] cultivate this

kind of critical refinement because the style of a performance is such a

significant issue . . . [quoting AFRICAN RHYTHM (1979), Schedule L, p. 82]

(5) CHOREOGRAPHIC DIALOGUE

139. Although the commercialization of hip-hop music has

positioned the rapper as the most visible expositor of the musical form, it

has been observed that “the key to the whole hip-hop culture is built on

the DJ’s playing for the dancers.” [quoting FOUNDATION (2009), Exhibit I,

p. 37]

140. Likewise, “African music, with few exceptions, is to be

regarded as music for the dance, although the "dance" involved may be

entirely a mental one.” [quoting AFRICAN RHYTHM (1979), Schedule L, p.

50]

B. SONIC ATTRIBUTES

(1) RHYTHM AS THE VITAL FORCE

141. Hip-hop is considered a “revolutionary” art form because it

tends to invert the Western concept of music by bringing the drums to

the forefront of the soundscape. According to jazz musician Max Roach,

46

hip-hop is “rhythm for rhythm’s sake.” See Exhibit M, p. 37.

142. “What makes it hip-hop is the drums.” [quoting MAKING

BEATS (2004), Exhibit J, p. 144].

143. According to AFRICAN RHYTHM & SENSIBILITY (Chernoff, J.),

“rhythmic complexity is the heart of African music . . . Rhythm is to the

African what harmony is to the Europeans, and it is in the complex

interweaving of contrasting rhythmic patterns that he finds his greatest

aesthetic satisfaction.’” [quoting A. M. Jones in AFRICAN RHYTHM &

SENSIBILITY (1979), Exhibit L, p. 40]

(2) KALEIDOSCOPIC SOUNDSCAPES

144. “Sampling allows producers to take musical performances

from a variety of recorded contexts and organize them into a new

relationship with each other. It is this relationship that represents the

producers' art, and it is this relationship that reveals the producers'

aesthetic goals.” [quoting MAKING BEATS (2004), Exhibit J, p. 150].

145. “Hip hop emphasizes and calls attention to its layered

nature. The aesthetic code of hip-hop does not seek to render invisible

the layers of samples, sounds, references, images, and metaphors.

Rather, it aims to create a collage in which the sampled texts augment

and deepen the song[’s] meaning to those who can decode the layers of

meaning.” [quoting Richard L. Schur, HIP HOP AESTHETICS AND

CONTEMPORARY AFRICAN AMERICAN LITERATURE (2008)].

146. “Just as the beat of an ensemble is made interesting by the

47

master drummer, so a rhythm is interesting in terms of its potential to be

affected by other rhythms . . . though the rhythms are played apart, the

music is unified by the way the separate parts fit together into a cross-

rhythmic fabric. Only through the combined rhythms does the music

emerge.” [quoting AFRICAN RHYTHM (1979), Schedule L, p. 31]

147. “The accents of a singer or a master drummer will engage

and highlight various rhythms in order to increase the effect.” [quoting

AFRICAN RHYTHM (1979), Schedule L, p. 52]

148. Describing a parallel dynamic in hip-hop music, Mr.

Carter states:

It’s been said that the thing that makes rap special, that makes it different both from pop music and from written poetry, is that it’s built round two kinds of rhythm . . . the beat is only one half of a rap song’s rhythm. The other is the flow. When a rapper jumps on a beat, he adds his own rhythm. Sometimes you stay in the pocket of the beat and just let the rhymes land on the square so that the beat and flow become one . . . beats and flows work together . . .” [quoting Jay Z, DECODED (2010), Exhibit M, pp. 10-12]

(3) TIMBRAL DIVERSITY

149. Hip-hop’s sonic aesthetic firmly rests on pulsating drums

and percussive elements and therefore incorporates key properties such

as tonal quality, pitch, duration, intensity, and especially timbre.

150. “Timbre . . . is the most important and ecologically relevant

feature of auditory events . . . . We employ the term timbre … to refer to

the overall sound or tonal color of an instrument - that indescribable

48

character that distinguishes a trumpet from a clarinet when they're

playing the same written note . . . .” [quoting THIS IS YOUR BRAIN ON MUSIC

(2006), Exhibit K, p. 45]

151. “Timbre is a consequence of the overtones. Different

materials have different densities … metal and wood-tend to produce

energy at several frequencies at once because of the way they are

internally structured. [quoting THIS IS YOUR BRAIN ON MUSIC (2006),

Exhibit K, p. 19]

152. “The timbre and other qualities of potential samples are a

particular concern for hip-hop producers. Nowhere is this interest more

manifest than in the selection of drum sounds. In fact, hip-hop

producers often comment on the apparent lack of concern for drum

timbres among musicians in other genres.” [quoting MAKING BEATS

(2004), Exhibit J, p. 144].

153. “Changing the part of one drum in a composition, therefore,

would alter the effect of the total rhythmic fabric.” [quoting AFRICAN

RHYTHM & SENSIBILITY (1979), Exhibit J, p. 57].

(4) DEEP LOW-END FREQUENCIES

154. Another chief distinguishing factor of hip-hop music is the

emphasis on low end bass frequencies that give the music a “thump” or

warmth. The challenge of obtaining the ideal low-end frequency on hip-

hop records is usually the task of a sound engineer.

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PART VI

HIP-HOP’S TRANSITION TO THE RECORDING STUDIO

A. CLASSIC DEFINITIONS OF “PRODUCER” VS. “ENGINEER”

(1) “RECORD PRODUCER”

155. In the North American phonograph industry of the 1970’s,

the term “producer” was primarily used to describe the person charged

with supervision over all aspects of the sound recording process, which

included selecting the location of the recording studio, hiring the studio

musicians or engineers, choosing the recording methodology, scheduling

sessions with the recording artist, coaching the “in-the-booth”

performances, contributing to song arrangements, and mixing the tracks

on the album to achieve the desired optimal sound.

156. It was customary for the record label or recording artists to

select ONE individual to produce an entire album of songs (e.g., Phil

Spector or Quincy Jones). No one but the record producer could take the

credit (or the blame) for the final sound of the master recordings. This

was because the classic record producer was present in the recording

studio at all times, directing all of the movements of the team players not

unlike the conductor of an orchestra.

157. In today’s music industry, the role of the 1970’s “record

50

producer” remains largely the same in genres which continue to record

music through acoustic instrumentation, such as rock, folk and country.

(2) “SOUND ENGINEER”

158. “As a rule, the intent of recorded music until the 1960’s was

to reproduce the sound of live performance as accurately as possible.

Therefore, the role of the recording engineer was to use recording

equipment to capture a sound on tape.” [quoting MAKING BEATS (2004),

Exhibit J, p. 41].

159. Sound engineers in the pre-digital recording era were usually

retained on a “work-for-hire” basis as studio personnel who, more often

than not, operated under the direct control and supervision of the

album’s record producer. Under this scenario, it was the unique “ear” of

the record producer that was prized by labels and recording artists. As

such, the record producer was present in the studio at all times giving

specific instructions.

160. A sound engineer may consist of multiple persons each

performing different engineering functions. For example, there may be a

tracking engineer, recording engineer, mixing engineer and mastering

engineer.

B. FROM HIP-HOP DJ TO “PRODUCER”

(1) DJ’S: MASTERING SCIENCE TO EXPRESS ART (1970’S)

161. During the 1970’s, the artistic expression of authentic hip-

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hop DJ’s required an in-depth knowledge of electrical and sound

engineering, as well as an advanced facility for operating state-of-the-art

technology in a live performance setting. In other words, to become a

real hip-hop DJ, there was a strict rite of passage: an aspirant had to

first acquire the scientific knowledge to operate his own technology

before expressing his voice. This meant that there was no true distinction

between art and science in the quest to stage the ultimate soundscape.

162. In the culture of hip-hop, a DJ and a sound engineer are one

in the same person, e.g., DJ Kool Herc, Grandmaster Flash, Afrika

Bambaataa. The founders of hip-hop knew that mastery over the

technology would lead to infinite possibilities in their artistic mode of

expression. To that end, unification of style and technique was

considered fundamental.

(2) THE BIRTH OF “RAP MUSIC” (1979)

163. During the first six years of its evolution, hip-hop music

largely remained an expression of local youth culture performed live at

community block parties and special events in the Bronx and Harlem.

164. In October of 1979, a song entitled “Rapper's Delight”

became the first studio recording to galvanize hip-hop music as a

commodity which “crossed over from New York's insular hip-hop scene to

Black radio, then charged up the American Top 40, and swept around

the globe.” [quoting HIP-HOP GENERATION (2004), Exhibit H, p. 129-131].

165. Once record executives observed that money could be

52

generated from the sales of recorded hip-hop music, which was coined by

the media as “rap music,” the focus of production shifted from live

performance in the streets of the Bronx to professional recording studios

in Manhattan. [HIP-HOP GENERATION (2004), Exhibit H, p. 129-131].

(3) ACQUIRING TOOLS OF THE TRADE (EARLY 1980’S)

166. “The move by hip-hop DJs into the [recording] studio was

part of a larger trend throughout the spectrum of popular music toward

the increased use of technology in the creation of music.” [quoting

MAKING BEATS (2002), Exhibit J, p. 40-41]. This transition was propelled

by the introduction of digital samplers, sequencers, drum machines and

synthesizers in the early-mid 1980’s.

167. “The transition from the use of turntables and live

instruments to the use of looping samplers in the mid-1980s is almost

universally viewed within hip-hop as a natural evolution.” [quoting

MAKING BEATS (2002), Exhibit J, p. 137)].

168. In 1986, E-Systems introduced the first sampling percussion

machine manufactured by, model no. SP-12.

169. The SP-12, and its more advanced progeny the SP-1200,

revolutionized the field by enabling a composer of hip-hop instrumentals

to construct the primary musical layer of a rap song through use of

sampled sounds or breakbeats.

53

(4) BUILDING THE “LAB” (MID-1980’S)

170. “Virtually all sample-based hip-hop producers do the

majority of their work in … home studios.” [quoting MAKING BEATS (2002),

Exhibit J, p. 46].

171. The democratization of music-making technology in the mid-

1980’s enabled beatmakers to construct hip-hop instrumentals in the

privacy of their own homes. This set the stage for a creative explosion in

the art of beatmaking because it granted the creators access to music-

making tools on a 24/7 basis.

(5) CLAIMING THE TITLE OF “PRODUCER” (LATE 1980’S)

172. “Because live musicians were no longer an essential part of

the recording process, “the roles of composer and musician became

integrated into that of the producer.” [quoting MAKING BEATS (2004),

Exhibit J, p. 41]

173. “Back then [in the mid-1980’s] it wasn’t labeled as

‘production.’ You had a drum machine and you made beats for your

MC’s. And next thing you know, when it came to making records, you

are known as a producer.” – quoting Prince Paul, BEAT KINGS: THE

HISTORY OF HIP-HOP (2007) [DVD].

(6) BIFURCATING THE DJ’S ORIGINAL ROLE (EARLY 1990’S)

174. Many successful hip-hop producers from the late 1980’s and

early 1990’s era, such as DJ Premier, had backgrounds as respected hip-

54

hop DJ’s and were largely capable of engineering their own sound

recordings. [On Vol. 3, Petitioner did not work on the DJ Premier track

because Premier handled it in his own studio environment].

175. Although there was a steep learning curve, the top producers

of the “Golden Age” era of hip-hop aspired to learn the “mathematics”

necessary to engineer a state-of-the-art hip-hop record from start to

finish; and therefore bridged the gap between making beats vs. actually

making records.

176. Andre Young p/k/a “Dr. Dre” is one of the most successful

producers of hip-hop records in the history of the art form. He began his

early career as a DJ and studied sound engineering and audio

techniques for years before establishing himself as a record producer.

He is now hip-hop’s first billionaire. Dr. Dre has made it a point to

publicly distinguish the role of a beatmaker from the role of a hip-hop

record producer:

“There’s definitely a big difference between a beatmaker and a producer because once you finish the beat, you have to produce the record.” – Dr. Dre, Art of Rap @ Netflix, 1:36:20.

177. “Q-Tip,” another successful producer and rapper with A

Tribe Called Quest, who made the beats for many of Tribe’s legendary

90’s hip-hop records, has made the exact same point (in a wholly

different interview):

[T]here’s a difference between producers and beatmakers. I think that's a thing that should be discussed more. Anybody can do dope beats and you rhyme over them and it's like, yeah, OK, but a

55

producer will do more to challenge you and what you're saying, really guide you through your performance on the song. In hip-hop, there’s not many true producers …”5 – Q-Tip 178. There are many beatmakers in the hip-hop genre who simply

lack the expertise, time or motivation to learn the craft of making a

record. But from the perspective of the music industry, this is not

necessarily a problem:

a. First, the beatmaker’s ability to perform his contribution in

the “lab,” outside of a professional recording studio and on

his own time, meant that there was no corresponding

requirement for him to learn the sophisticated recording,

mixing, editing, or pre-mastering techniques involved in the

production of the master recording.

b. Second, the professional recording studios utilized by major

labels often employed in-house engineers who already knew

how to operate the console.

c. Third, beatmakers had already solidified their claim to the

title of “producer,” and whatever fame and income that

became associated with such title, and there was not much

incentive for them to learn the craft of making a record

(unless, of course, it was their passion to do so).

179. As the 1990’s progressed, major label rappers were no longer

seen pairing up with only one DJ / beatmaker to record an entire album. 5 http://www.redbullmusicacademy.com/lectures/q tip?template=RBMA_Lecture%2Ftranscript (accessed June 2, 2014).

56

Instead, the rappers or A&R executives selected beats from a wide range

of materials based on a single-to-single basis. This meant even less

participation by the beatmakers in the professional sound studio’s

recording process.

C. ENTER THE “STUDIO MAGICIANS”

(1) THE HIP-HOP ENGINEER

180. In hip-hop, the sound engineer takes on a substantial role in

the production process of sound recordings, in part, because “[s]ample-

based hip-hop is a studio-oriented music.” [quoting MAKING BEATS (2002),

p. 41].

181. According to Dan Levitin in THIS IS YOUR BRAIN ON MUSIC:

“Recording engineers and musicians have learned to create special effects that tickle our brains by exploiting neural circuits that evolved to discern important features of our auditory environment. These special effects are similar in principle to 3-D art, motion pictures, or visual illusions, none of which have been around long enough for our brains to have evolved special mechanisms to perceive them; rather, they leverage perceptual systems…. “Recording engineers have learned to mimic those cues to imbue recordings with a real-world, life like quality even when they’re made in sterile recording studios.” [quoting THIS IS YOUR BRAIN ON MUSIC, Exhibit K, p. 107]. 182. The contributions of a sound engineer to a hip-hop sound

recording are analogous to the contributions of a photographer who uses

her knowledge of camera technology to express a creative “eye” by

capturing the optimal light directed at a subject and developing the

selected image into versions deemed suitable for professional exhibition.

57

183. Given that hip-hop music is produced in the digital domain,

the role of the sound engineer takes on greater significance in the core

processes of beat editing, instrumentation, synthesizing, musical

composition, song arrangement, mixing, and pre-mastering.6

184. In digitally produced music, the sound engineer (or

programmer) ultimately controls the frequency (i.e., rate of vibration); the

amplitude (i.e., intensity of vibration); and the pitch (the rate of vibration

expressed as musical notes (A, A#, etc.) of the sonic elements which are

interwoven into the sound recordings.

185. The role of the sound engineer is also critical in hip-hop

musical production, as compared to the traditional role played by sound

engineers in the acoustic recording process, because the foundation of

hip-hop culture stresses an individual’s mastery over a technique in their

chosen field. For example, rappers strive to master the technique of

vocal delivery, b-boys strive to master the technique of a lexicon of dance

moves, and DJs strive to master the techniques involved in live sound

presentation.

186. Not unlike a stunt pilot who must master the aviation

controls in the cockpit before showcasing the aircraft’s manuevers as a

work of performance art, hip-hop sound engineers are required to exhibit

6 Whereas analog recording is a continuous process that captures and stores the musical waveforms directly in the tangible recording medium (i.e. vinyl or tape), a digital recording system encodes a description of the musical waveforms in a binary code that can be reduced to numbers. Sounds recorded into a digital format are therefore subject to endless variations of manipulation by the sound engineer.

58

a high degree of mastery over the complex technical aspects that are

involved in producing a professional sound recording in the field of hip-

hop.

(2) THE PROGRAMMER

187. A “programmer” is a recording industry term used to

describe a studio composer, arranger, instrumentalist or synthesist who

engages in musical composition through use of electronic devices such

as digital samplers, drum machines, synthesizers, audio sequencers, or

software programs.

188. Programming is musicianship by virtual simulation of a

manually-played instrument. Through use of hardware (e.g., the SP-1200,

Akai MPC-60 or Ensoniq ASR-10) or a digital audio workstation (e.g., Pro

Tools, Apple Logic), the programmer can originate a musical composition

and sound recording simultaneously.

59

PART VII

PETITIONER’S CONTRIBUTIONS

A. OVERVIEW

(1) PETITIONER’S CONTROL OVER THE FINAL SOUND

189. For each of the 45 tracks listed in Schedule A, as well as

with respect to all unpublished materials, Petitioner’s collaborative role

in the recording studio vis-à-vis the putative joint authors was typically

the same: Mr. Mahan was in charge of setting up or scheduling the

recording sessions and studio time, tracking the prototype beat of the so-

called “producer,” pre-mixing the beat, sample editing, choosing the

recording methodology and setting up the microphones, vocal recording,

vocal coaching, vocal compositing, multi-track mixing, song arranging,

pitch shifting, additional editing, and pre-mastering a final version

through use of a digital audio workstation such as Pro Tools.7

190. There were other joint collaborators in the process, of course,

but they often came and went quickly. Petitioner’s role was to be

physically present in the studio for the entire process, at all times

7 To the extent more sonic detail or descriptions will be required on a track-by-track basis to establish Petitioner’s original contributions to the recording in question, the Court should note that the actual sound recordings that need to be analyzed are no longer in Petitioner’s possession, having been seized by the LAPD, and therefore could not have been individually analyzed by Petitioner’s counsel in preparing this petition.

60

monitoring the various sonic elements at play; and he was constantly

working on his own – without any supervision - towards molding and

shaping the optimal soundscape.

191. The reason why Petitioner ultimately came to possess all of

the multi-track recordings on his Pro Tools system is because he

maintained full control over the entire process of actually making the

record.

(2) COMPLETE ABSENCE OF THE BEATMAKER

192. Once the various beatmakers had completed a rough version

of the beat, which more often than that existed in an undeveloped,

truncated or demo form (hereinafter, the “prototype beat”), the beat was

then delivered to Mr. Mahan directly or to the record label’s A&R

department.

193. During the Fall of 1999, when the Schedule A Recordings

embodied on Vol. 3…Life and Times of S. Carter were tracked, recorded,

mixed, arranged, edited, and pre-mastered at Sony Studios – Studio E

none of the beatmakers who were credited as “producers” on Vol. 3 were

in the building.

194. Once the beatmaker delivered his beat to the Petitioner,

either directly or through the Roc-A-Fella A&R executive, the respective

contributions of the beatmaker had ended before the actual process of

making the record had begun. Thus, regardless of whatever title or credit

was ascribed to his role, Chauncey Mahan is the only collaborator on Vol.

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3 who truly functioned in all of the same capacities as the classic 1970’s

“record producer.”

(3) MODERATE INPUT FROM RAPPERS

195. Mr. Carter’s role in the process of making the sound

recordings embodied on Vol. 3 was largely focused on performing his

vocals. Otherwise, Mr. Carter would stop by Sony Studios from time to

time to listen to the progress of what Petitioner was doing. But, aside

from the vocal performance process, Mr. Mahan largely performed his

contributory role in solitude, expending dozens of hours manipulating

the sound to “make it hot.”

B. MULTI-TRACKING THE BEAT

196. Petitioner’s first step in the professional recording studio was

called “tracking”, which describes the technique of separating the

individual sonic elements of the prototype beat and sliding them into

divisible, numbered tracks.

197. For each of the 45 songs listed in Schedule A, Petitioner

performed the tracking process via his Pro Tools multi-track system.

198. The purpose of multi-tracking the prototype beat in Pro Tools

is to enable the Petitioner to exercise his aesthetic command over the

individual sonic elements that comprise the beat; namely, the snare

drum, kick drum, hand clap, bassline, closed hi-hat, open hi-hat, conga,

sampled loop, or some kind of abstract noise, etc.

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C. PRE-MIXING

199. After Petitioner multi-tracked the sonic components of the

prototype beat, he then individually analyzed, modified, EQ’d,

compressed, filtered, phased, layered or refined the elements of the

prototype beat through a variety of tools provided in his digital audio

workstation.

200. Petitioner always manipulated the different timbres of the

sonic elements and expended time cycling the tracks to achieve what he

perceived to be the ideal cross-fabric or “sweet spot” of multiple timbral

qualities.

201. The only limitation on Petitioner’s use of Pro Tools to pre-mix

and edit the prototype beat was Petitioner’s own imagination and

aesthetic preference.

202. Petitioner’s contributions to the pre-mixing process were

routinely improvised by leveraging his own expertise and experimenting

“in the moment” using a progressive style of trial and error over the

course of multiple sessions.

D. EDITING THE BEAT

203. After the prototype beat was tracked and pre-mixed in Pro

Tools, Petitioner edited the sampled sounds or loops to eliminate any

defects, such as unwanted clicks, hums, or buzzes.

204. During the beat editing process, Petitioner sometimes

(although not always) substituted his own preferred sound samples for

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those originally selected by the beatmaker. For example, the specific

timbre of the snare drum used in any given hip-hop beat carries a

special, heightened reverence in hip-hop production circles. By simply

changing the snare drum sample in an underlying beat, the entire song

is likely to take on a distinct “groove” or feel that can determine whether

the song is successful with audiences. Petitioner had the discretion to

render such alterations.

205. In tracks where Petitioner actually substituted sampled

sounds in his own mixing console that had the effect of modifying key

elements of the prototype beat, e.g., by substituting the snare drum or

kick drum for other drum samples, then Petitioner contributed to the

beatmaking process.

E. RECORDING VOCALS

206. In hip-hop sound production, the process of “recording”

refers to the methodology used by the professional sound engineer to

capture the in-studio performance of the rapper or other featured

vocalists.

207. With respect to the Schedule A Recordings, Petitioner made

original contributions as the recording engineer charged with selecting

the model, make and quantity of microphones and other audio devices

for use in the vocal recording process depending on the song’s original

timbre or number of vocalists, physically positioning the microphone(s),

providing direction or motivation to the vocalists during their

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performances in the sound booth, and regulating against potential

sibilance.

208. The process of recording a professional-sounding vocal

performance in the field of hip-hop is a craft performed by formally

trained sonic artisans. Petitioner is such an artisan, having acquired

unique expertise in capturing the human voice, a naturally-occurring

analog phenomenon, and transmuting that voice into digital waveforms

that consist of a mathematically reconfigured or time-and-space-shifted

reflection.

209. Mr. Carter has himself recognized that the voice going into a

microphone is not quite the same as the sound coming out of the

speaker on the other end. It is, in effect, a distorted simulation of the

human voice that carries distinct tonal properties.

“We] started practicing our rhymes into a heavy-ass tape recorder with a makeshift mic attached. The first time I heard our voices playing back on tape, I realized that a recording captures you, but plays back a distortion – a different voice from the one you hear in your own head, even though I could recognize myself instantly, I saw an opening, a way to re-create myself and reimagine my world. After I recorded a rhyme, it gave me an unbelievable rush to play it back, to hear that voice.” – Jay Z, DECODED (2010) 210. “Sibilance” occurs where the recording of a performer’s vocal

generates “pops” or distortion because of the rapper’s pronunciation of

hard consonants, e.g., “p” or “t.” Because rappers often enunciate in

percussive tones, the elimination of sibilance is a particular challenge for

every recording engineer, including Petitioner. Petitioner utilized a “de-

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esser” plug-in to cut the sibilance down during in-studio performances

while leaving the vocals sounding clean and bright.

211. Because a rapper is inspired to move about physically during

his performance while the rhythm track is playing, unwanted sibilance

may also occur due to audible drop-outs in the vocal tracks. Petitioner

coached the Roc-A-Fella recording artists in terms of their physical

performance on the microphone and suggested ideal spatial dynamics

necessary to capture what Petitioner believed would be the ideal

performance.

212. At all relevant times, Petitioner maintained full aesthetic

command over the process of vocal recording the Schedule A Recordings

and retained decision-making authority concerning the ideal

methodology to optimize the sound of the captured performances.

213. Recording vocals – particularly percussive vocals as is the

case in rap – is a daunting challenge and very much an art form unto

itself.

F. COMPOSITING VOCALS

214. The process of compositing vocals is a form of musical

arrangement which requires the engineer or producer of a hip-hop record

to engage her aesthetic sensibilities to generate an optimal-sounding

vocal performance.

215. After Petitioner electronically captured the performances of

the vocalists, including Jay-Z, Petitioner expended several hours on his

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own time “compositing” the vocals by compiling together or splicing

together the best performance parts from each of the numerous different

takes. This is a tedious process, but one which generates the best

results.

G. MIXING

216. The process of “mixing” involves the careful and nuanced

infusion of all of the individual sonic components together into a unitary

whole.

217. The process of “mixing” is performed by a mixing engineer

and includes the use of dynamic sound processors and equalization to

shape and balance the final soundscape of the record.

218. Petitioner mixed every one of the 45 sound recordings listed

on Schedule A. As indicated, another mixing engineer named “Duro”

also contributed his skills to mixing some of the records. But there was

never a case where Duro simply mixed the entire song himself.

219. The fact that Duro was credited as the mixer on the majority

of tracks listed where the two engineers shared the mixing duties had

more to do with Duro’s longstanding personal relationship with Mr.

Carter than with the actual relative contributions that took place.

220. With respect to each mix, Petitioner routinely used the

processes or techniques of equalization, reverb, delay, expansion,

filtering, phasing and amplifiication to add balance, depth, color, and

tonality to each of the diverse instruments or distinct sounds located in

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the multi-track mix of the Sound Recordings. For example, to accentuate

or balance the drum or percussive sounds of any given recording,

Petitioner used an expander/gate to decrease the amplitude of a signal

when it fell below a certain threshold.

221. The goal of equalization for the mixing engineer is to make

subtle adjustments that allow all of the tracks to inhabit their own

frequency areas. This allows the song to be clear and each instrument

distinguishable. As once said by jazz musician Sun Ra, “space is the

place.” The spatial dimensions of the recording, i.e., the gaps between

individual sounds and accents, is often what gives the final sound its

appeal.

222. Petitioner also used high or low pass filters on the Schedule

A Recordings to eliminate any unneeded frequencies or to enhance the

low-end of the bass or crackle of the snare.

223. Automation tools are designed to recreate the effect of sound

waves traveling through the space of a room, providing a more natural

sound to recordings. Petitioner also applied automation techniques to

certain tracks in each mix by increasing or fading volume, echo, or

reverb at certain points along each song’s continuum. Alternatively,

Petitioner used automation techniques to “pan” an individual track from

left to right in a stereo spectrum to achieve a wider sound or special

effect in the listener’s ear.

224. Petitioner also experimented with increasing the volume of

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certain frequencies in the mixes of the Schedule A Recordings without

causing any distortion. Petitioner’s expertise was necessary to regulate

the deep “low-end” frequencies of the tracks, which always present a

particular challenge in the field of hip-hop sound production. Too much

bass can muffle or overwhelm the mix; but not enough will render the

track less appealing to audiences. It was Petitioner’s task to find the

right warmth in the low end frequency and to manipulate the overall

duration and tonality of the extended kick drum.

225. During a mixing session, Petitioner also utilized digital audio

compression plug-ins to modulate the ratio, attack, and threshold of

each song with the intent of substantially altering the sonic impact of the

recording.

226. There is a sonic imperative in sampled-based hip-hop to

make electronically produced elements sound natural: to create a

virtually enhanced simulation of a live band.

227. “Hip-Hop producers must balance the requirement of

precision with the requirement that the rhythm be conducive to dancing

(a quality often characterized by hip-hop heads as having "bounce.”).

The beat must neither be too mechanical nor too ‘sloppy.’” [quoting

MAKING BEATS (2004), Exhibit J, p. 144].

228. All of the mixing tasks described herein were performed by

Petitioner with respect to each of the Schedule A Recordings, as well as

with respect to some of the unpublished materials.

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H. SONG ARRANGEMENT OR STRUCTURE

229. Petitioner also contributed to the process of arranging or

sequencing the song’s different component parts, such as the into, hook,

chorus, bridge, break, climax, or ending. Petitioner was able to exercise

a high degree of aesthetic command in the arrangement process by using

the digital audio workstation such as Pro Tools.

230. In hip-hop music, the process of arranging a song involves

deciding upon the ideal introduction to catch the DJ’s or listener’s ear.

There is usually only 10-15 seconds to catch someone’s ear, so structure

and arrangement of the intro is critical.

231. Petitioner also contributed to the placement of the “hook” or

chorus in strategic places throughout the song to keep listener’s engaged.

Through Pro Tools, he was able to effect subtle changes or quick

transitions in the song, often spaced out at 4 or 8 bars, to build the

suspense or dynamic tension throughout the song, or to accentuate a

key vocal performance. He used Pro Tools to create dynamic effects or

suspense, and to structure a moment of release of energy at some

climatic point along the song’s continuum.

232. At all relevant times, there existed virtually unlimited

possibilities for Petitioner to achieve the optimal sound of the hip-hop

sound recording through the song arrangement or song structure

process.

233. Petitioner performed these functions according to his own

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aesthetic sensibilities and without the direct or even indirect supervision

of other putative joint authors.

I. PRE-MASTERING

234. “Pre-mastering” describes the final process performed by a

sound engineer in the recording studio environment before the entire

album of songs is sent to a third-party mastering facility.

235. The engineer’s goal in pre-mastering is to provide high

fidelity and clarity to the soundscape experienced by audiences across

multiple platforms via any audio source.

236. In those cases where Petitioner pre-mastered one of the

songs listed on Schedule A (it is not known which of the 45 tracks he

pre-mastered as of the date of this filing), then he would have utilized

nothing more than subtle finishing touches to the songs by making slight

adjustments primarily to the EQ, compression, limiting, and stereo

enhancement.

J. “DUMPING”

237. After Petitioner mixed or pre-mastered a particular sound

recording, he was often asked to “dump” the entire Pro Tools multi-track

version to a two-track version consisting of a stereo audio file.

238. In some cases, Petitioner needed to ensure that all songs on

a single DAT tape were of comparable volume so that the two-track tapes

sounded cohesive.

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COUNT I

DECLARATORY JUDGMENT

COPYRIGHT ACT, 17 U.S.C. § 101, et seq.

OWNERSHIP & AUTHORSHIP [Sound Recordings]

A. PETITIONER’S STANDING

239. Petitioner incorporates by reference all of the factual

allegations stated in paragraphs 1 to 238 of the Petition as if fully set

forth in this Count I.

240. The district court has jurisdiction to render a declaratory

judgment pursuant to the DECLARATORY JUDGMENT ACT, 28 U.S.C. § 2201

where an “actual controversy” exists.

241. As set forth in section B of Part III , the adverse positions of

the parties have crystallized and the conflict of interests is real and

immediate.

(1) COPYRIGHT OWNERSHIP & AUTHORSHIP

242. Legal ownership in a copyright “vests initially in the author

or authors of the work.” 17 U.S.C. § 201(a).

243. “[A]n author is he to whom anything owes its origin;

originator; maker.” Medforms, Inc. v. Healthcare Mgmt. Solutions, Inc.,

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290 F.3d 98, 107 (2d Cir. 2002). The word “author” refers to a person

“who is the source of some form of intellectual or creative work.”

WEBSTER'S THIRD INTERNATIONAL DICTIONARY 146 (2002).

244. The creator of a work is, at least presumptively, its author

and the owner of the copyright. See Community for Creative Non-

Violence v. Reid, 490 U.S. 730, 737 (1989).

245. “[C]opyright’s goal of fostering creativity is best served . . . by

rewarding all parties who labor together to unite idea with form, and that

copyrightable protection should extend both to the contributor of the

skeletal ideas and the contributor who fleshes out the project.” See Nimmer

§ 6.07[A][3][a] (emphasis added)

(2) THE ENGINEER OR PRODUCER IS A “CLASSIC JOINT AUTHOR” OF SOUND

RECORDINGS

246. As per the Copyright Act of 1976, “[c]opyright protection

subsists ... in original works of authorship ....[including] ... (7) sound

recordings. See 17 U.S.C. § 102(a)(7).

247. Copyright law protects a sound recording from the time it is

created in a tangible format and thereafter becomes “the property of the

author who created it.” See Circular No. 9, U.S. COPYRIGHT OFFICE.

248. In 1971, Congress specifically addressed the joint ownership

rights in sound recordings split between the “performers” and “record

producers” who contributed to the origination of sound recordings:

[t]he copyrightable elements of a sound recording will usually, though not always, involve

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authorship both on the part of the performers whose performance is captured and on the part of the record producer responsible for setting up the session, capturing and electronically processing the sounds, and compiling and editing them to make a final sound recording.

- Five years later, when Congress enacted the Copyright Act of 1976,

it quoted the above 1971 passage into the House Report. See HR Rep. No. 941476, 94th Cong. 2nd sess. 56 (1976) 249. Discussing the 1976 House Report, Professor Nimmer

recognizes that the Congressional committee was actually referring to the

contributions of sound engineers (as opposed to record producers)

observing that “it is the sound engineer who actually performs the

task of capturing and electronically processing the sounds” and

concluding that an executive record producer’s copyright “must be

derivative, through employment for hire or assignment.” See 1 Melville B.

Nimmer & David Nimmer, NIMMER ON COPYRIGHT § 2.10[A][2]-143

(2006), quoting H.R. REP. No. 94-1476, 94th Cong., 2d. Sess. 1 (1976)

(emphasis added).8

250. Discussing the 1976 House Report, Professor William Patry

states that “[w]ith audio recording of a live musical performance, and the

making of sound recordings, the performers and the sound

engineer/producer, are, absent any special circumstances, classic

joint authors.” http://williampatry.blogspot.com/2006/08/joint-

ownership-of-sound-recordings.html; citing H.R. Rep. No. 1476, 94th

8 See also Forward v. Thorogood, 985 F.2d 604, (1st Cir. 1993) (“It is apparent from this passage that the ‘producer’ envisaged by the [House] committee is one who engaged in artistically supervising and editing the production.”).

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Cong. 2d Sess. 56 (1976) (emphasis added).

251. Federal courts that have addressed the joint authorship

requirement within the specific context of the music industry have

consistently recognized that sound engineering contributions, if deemed

appreciable, are sufficient to accord copyright authorship and ownership

status to the engineer or producer.9

B. DECLARATION SOUGHT: JOINT AUTHORSHIP & OWNERSHIP

(1) MR. MAHAN’S CONTRIBUTIONS – PUBLISHED MATERIALS

252. Petitioner’s original contributions to the Schedule A

Recordings have been alleged elsewhere in this Petition and were of an

artistic, musical, scientific and intellectual nature.

253. Petitioner’s contributions to the Schedule A Recordings,

9 See, e.g., Diamond v. Gillis, 2005 U.S. Dist. LEXIS 2410 (E.D. Mich. Feb. 17, 2005) (finding that Petitioner’s “work as an engineer, co-producer, and mixer is within the ambit of authorship for purposes of a copyright in sound recording”); Ulloa v. Universal Music and Video Distribution Corp., 303 F.Supp.2d 409, 418 (S.D.N.Y. 2004) (Jones, J.) (recognizing that “an original contribution by a sound engineer, editor, or producer may result in a joint ownership between the record producer and a performing artist in a sound recording.”) citing 1 Nimmer § 2.10[A][3]; JCW Investments, Inc. v. Novelty Inc., 289 F. Supp. 2d 1032 (N.D. Ill. 2003) (finding that a sound engineer may be deemed an author when he is “responsible for setting up the session, capturing and electronically processing the sounds, and compiling and editing them to make a final sound recording.’”) (quoting H.R. Rep. No. 94-1476, at 56 (1976); Staggers v. Real Authentic Sound, 77 F.Supp.2d 57, 63 (D.D.C. 1999) (stating that where a sound engineer’s creative contributions to the sound recording are substantial, a joint authorship may exist); Systems XIX, Inc. v. Parker, 30 F.Supp.2d 1225, 1228-30 (N.D. Cal. 1998) (finding joint ownership where plaintiff undertook the arrangement and administration of recording equipment, electronic processing of sounds, and balancing or equalization of vocal and instrumental components into a “blended whole”); quoting UNITED STATES

COPYRIGHT OFFICE, Compendium of Copyright Office Practices § 495.01 at 400-37 (noting that both the performer and the record producer usually contribute to the authorship of a sound recording); see also Morrill v. J.M. Productions, 157 F. Supp. 2d 1120, 1122-26 (C.D. Cal. 2001) (finding that the plaintiff’s contributions in producing and editing a music video satisfied “the requisite level of copyrightable expression necessary to support a claim of joint authorship.”).

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particularly when viewed in the aggregate and in the proper context of

the hip-hop musical genre, constitute an appreciable amount of original

authorship.

254. Petitioner’s contributions to the Schedule A Recordings are

independently copyrightable, i.e., the original elements he contributed

exist independent of the final mastered sound recordings published by

Roc-A-Fella.

(2) MR. MAHAN’S CONTRIBUTIONS – UNPUBLISHED MATERIALS

255. Mr. Mahan seeks a separate declaration of joint ownership in

connection with the unpublished materials that are currently embodied

on the hardware and storage devices seized by the LAPD.

(3) MUTUAL INTENT OF THE INDIVIDUAL PARTIES

(a) Chauncey Mahan

256. The element of Mr. Mahan’s intent has been alleged

elsewhere in this Petition.

257. At the time of his collaboration with Mr. Carter, Petitioner

had the full intent that his original contributions to the Schedule A

Recordings would be merged into inseparable or interdependent parts of

a unitary whole.

258. As the “magician behind the glass” in the recording studio

who spent hundreds of hours supervising and substantially participating

in the hands-on creation of all forty-five tracks identified in Schedule A,

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Petitioner exercised a high degree of control over every sound recording

to which he contributed.

259. Petitioner exercised unfettered control over the specific

artistic elements he contributed to the Schedule A Recordings; which

means that none of the other putative joint authors provided him verbal

instructions or guidance as to how he should perform his role during the

collaborative process.

260. Petitioner’s contributions to the Schedule A Recordings

embodied on Vol. 3 were appropriately billed and credited by Mr. Carter

and Roc-A-Fella with respect to his role as a recording engineer and co-

producer. However, with the exception of the record entitled Big Pimpin’,

Petitioner did not receive the full credit to which he was entitled for the

substantial contributions he made as a mixing engineer.

(b) Shawn Carter

261. The element of Mr. Carter’s intent has been alleged

elsewhere in this Petition.

262. Mr. Carter has publically recognized that hip-hop music-

making is a joint collaborative effort.

“When you go in and make an album, you have to put all ego aside, I’m putting ego aside, everyone has to put ego aside for the sake of the project.” Jay Z – Zane Lowe Interview, Part 1 (9:52)

263. Mr. Carter has stated that the mutual contributions of

rappers and producers are necessary to achieve the ideal sound

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recordings:

“you can write the greatest songs in the world, if you don’t have the producers in that same zone, you know, everyone has to align at the same time, and that’s difficult. You know, sometimes you are writing greater things than the producers are coming up with, and sometimes the producers are just carrying the day, so in those rare times when everything aligns, that’s when it’s like - those magic moments …” Jay Z – BB1 INTERVIEW W/ ZANE LOWE, PART 1 (9:52)10 264. As a hip-hop recording artist working in an intrinsically

collaborative musical form, Mr. Carter had the collegial intent to

collaborate with Petitioner (as well as the other putative joint authors)

towards the common goal of creating the Schedule A Recordings

embodied on VOL. 3 and The DYNASTY, as well as the unpublished

materials.

265. At all relevant times, Mr. Carter had the full intention that

his contributions to the Schedule A Recordings embodied on VOL. 3 and

THE DYNASTY, which consists of vocal performances in his capacity as the

rapper Jay Z, would be merged into inseparable or interdependent parts

of a unitary whole recording.

266. From August 1999 through October 2000, Mr. Carter

expended dozens of hours in the recording studio working one-on-one

with Mr. Mahan to create the Schedule A Recordings embodied on VOL. 3

and THE DYNASTY, as well as the unpublished materials. Mr. Carter also

knew that Mr. Mahan expended hundreds of hours in the recording 10 http://www.hiphopdx.com/index/videos/id.13702/title.jay-z-zane-lowe-interview-part-1

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studio by himself editing and manipulating the various sonic elements

which are interwoven into the final sound recordings.

267. During Petitioner’s collaboration with Roc-A-Fella recording

artists, Mr. Carter never addressed the issue of legal ownership of the

sound recordings with Mr. Mahan. Nor did Mr. Carter discuss any

contractual arrangements or terms with Mr. Mahan at any time.

268. Mr. Carter was responsible for crediting and billing Mr.

Mahan on the liner notes that were published along with the release of

the Schedule A Recordings embodied on Vol. 3 and THE DYNASTY.

269. With respect to the liner notes published in connection with

VOL. 3, Mr. Carter personally thanked Mr. Mahan for his contributions to

the album in the same paragraph line as all other artistic collaborators

whose respective talents contributed to the creation of the recordings

embodied on Vol. 3. These artistic collaborators included the beatmaker,

guest rappers, and a mixing engineer.

270. Mr. Carter did not consider Mr. Mahan to be his personal

employee, nor did he consider Mr. Mahan to be a corporate employee of

Roc-A-Fella. To the contrary, Mr. Carter knew that Mr. Mahan was an

independent contractor or professional freelancer.

271. Upon information and belief, Mr. Carter was not a common

law employee of Roc-A-Fella nor Def Jam nor UMG as of the time the

Schedule A Recordings were created.

272. Upon information and belief, Mr. Carter conveyed his

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copyright ownership interests in all sound recordings to Roc-A-Fella, Def

Jam and UMG by way of contractual assignment under 17 U.S.C.

Accordingly, Mr. Carter was vested with a joint authorship interest in the

Schedule A Recordings as of the time the sound recordings were created.

(c) Intent of Putative Joint Authors (i.e., third parties)

273. Each of the beatmakers identified in Schedule A had the full

intention that his contribution of a prototype beat would be merged into

inseparable or interdependent parts of a unitary whole recording.

274. As a hip-hop beatmaker working in an intrinsically

collaborative musical form with other rappers and sound engineers, each

of the Beatsmith identified in Schedule A had the collegial intent to

collaborate with the Petitioner (and the other putative joint authors)

towards the common goal of creating the specific Schedule A Recording

for which they provided the prototype beat.

275. Each of the Roc-A-Fella rappers and guest vocalists

identified in Schedule A had the full intention that his or her

contribution of a vocal performance would be merged into inseparable or

interdependent parts of a unitary whole recording.

276. As a hip-hop artist or R&B vocalist working in an

intrinsically collaborative musical form with other rappers, beatmakers

and sound engineers to achieve an optimal-sounding record, each of the

rappers or vocalists identified in Schedule A had the collegial intent to

collaborate with the Petitioner (and the other putative joint authors)

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towards the common goal of creating the Schedule A Recording and the

unpublished materials.

C. ALTERNATIVE DECLARATION: SOLE OWNERSHIP

277. Petitioner respectfully seeks an declaration of sole ownership

in the alternative as to the Schedule A Recordings, as well as the

unpublished materials, in the event that the putative joint authors

identified in this petition are deemed a “work-for-hire” or common law

employee of UMG, Def Jam or Roc-A-Fella.

278. In such an event, then Petitioner Chauncey Mahan should

be rightfully declared the sole owner of that specific sound recording to

which the “work-for-hire” ruling applies. This is because:

(a) the work-for-hire status conferred means that the putative joint

author-employee who conveyed their rights to the label was never

actually an author as of the time of creation; and

(b) a corporate entity cannot be a joint author with another natural

human being under the Copyright Act of 1976. Accordingly,

Petitioner would necessarily establish sole ownership in the

subject SR copyrights by virtue of the label’s status as an artificial

entity.

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COUNT II


COPYRIGHT ACT, 17 U.S.C. § 101, et seq.

INVALIDATION OF ROC-A-FELLA’S SR COPYRIGHTS AS VOID AB INITIO

[Sound Recordings]

A. PETITIONER’S STANDING

279. Petitioner incorporates by reference all of the factual

allegations stated in paragraphs 1 to 278 of the Petition as if fully set

forth in this Count II.

280. The district court has jurisdiction to render a declaratory

judgment pursuant to the DECLARATORY JUDGMENT ACT, 28 U.S.C. § 2201

where an “actual controversy” exists.

281. As set forth in section B of Part III, the adverse positions of

the parties have crystallized and the conflict of interests is real and

immediate.

282. Moreover, the SR copyrights at issue are void ab initio as a

matter of statutory law and are therefore subject to invalidation.

B. DECLARATION SOUGHT – SR COPYRIGHTS [SCHEDULE C]

283. With respect to all of the SR copyright registrations listed in

Schedule C of this Petition, all such registrations with the U.S. Copyright

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Office are effectively null and void and should be declared by the

Honorable Court as having no legal effect. This is because Roc-A-Fella

filed the registration listing it as an “employer-for-hire” which is a

patently false and material misrepresentation given that Petitioner was

not a common law employee of Roc-A- Fella or UMG or Def Jam at the

time the sound recordings came into existence.

284. Roc-A-Fella’s misrepresentation is material because

Petitioner did not sign a written agreement to assign his copyright as

statutorily required by section 202 of the Copyright Act of 1976.

285. Moreover, even if a copyright assignment agreement were to

exist as between Roc-A-Fella and the other putative joint authors

identified in this Petition, the misrepresentation is material because Roc-

A-Fella’s false registration of the SR copyrights unlawfully impedes the

Joint Authors’ termination rights under section 203 of the Copyright Act.

286. In addition, Roc-A-Fella’s SR copyright for the album entitled

Vol 3…Life and Times of S. Carter is void ab initio on additional grounds

that it has been registered as a “collective” work without the required

listing of the names of the actual authors of the sound recording on the

face of the registration.

287. Finally, Roc-A-Fella’s SR copyright for the albums entitled

The Dynasty and The Truth are void ab initio as a matter of statutory law

because Roc-A-Fella clearly omitted to specify the basis of the copyright

registration on the face of the registration

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PRAYER FOR RELIEF

WHEREFORE, Petitioner CHAUNCEY MAHAN prays for

Declaratory Judgment Against Respondents ROC NATION, LLC, ROC-A-

FELLA RECORDS, LLC and SHAWN CARTER, p/k/a “JAY Z” as follows:

COUNT I


JOINT OWNERSHIP AND AUTHORSHIP

1. Upon good cause shown, Petitioner respectfully seeks a

declaratory judgment from the Honorable Court pursuant to 28 U.S.C. §§

2201, 2202 and in the further interests of justice declaring Petitioner to

be a joint owner and author of the individual sound recordings listed in

Schedule A of this Petition as well as all of the unpublished materials

that are currently in possession of the LAPD in Los Angeles.

SOLE OWNERSHIP

2. In the alternative, Petitioner seeks a declaration, upon good

cause shown, that he is the sole owner of the individual sound

recordings listed in Schedule A of this Petition as well as all of the

unpublished materials that are currently in possession of the LAPD in

Los Angeles.

COUNT II


3. Upon good cause shown, Petitioner respectfully seeks a

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declaratory judgment from the Honorable Court pursuant to 28 U.S.C. §§

2201, 2202 and in the further interests of justice declaring the SR

Copyrights identified in Schedule C of this Petition as invalid as a matter

of statutory law and therefore having no legal effect.

4. Petitioner respectfully seeks his costs and an award of

reasonable attorneys’ fees for Counts I and II as per 17 U.S.C. § 505.

Dated: July 8, 2014 New York, New York RESPECTFULLY SUBMITTED

____________________________ James H. Freeman, Esq. JH FREEMAN LAW 3 Columbus Circle, 15th Floor New York, NY 10019 Telephone: (212) 931-8535 [email protected] Counsel for Petitioner Chauncey Mahan

mahan

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